"Where Intellectual Honesty Has (Almost Always) Trumped Partisanship -- Albeit in a Kind of Boring Way Until Recently -- Since 2005"

Tuesday, May 13, 2014

Cute Chart, Questionable Advice

I enjoyed the decision chart that Howard posted the other day, but for some reason it's been sticking in my head. It's perhaps worth noting that in its original appearance (as far as I know), it was titled "Asking questions at conference," not--as Howard has it--"Workshops." (Howard got it via Feminist Law Profs, which didn't title it one way or the other.) I'd have to think about whether it makes more sense for conferences as opposed to workshops. But although it obviously is humor, pretty obviously is funny, and definitely conveys some truths, I think it would be bad advice for those considering asking questions at workshops. Part of my concern has to do with something a commenter on Howard's post picked up on--that, if we are to credit recent studies and articles about confidence gaps, a rule that encourages the un- or under-confident to almost always shut up could have negative and disproportionate effects. Of course I think there is definitely such a thing as too much confidence in the value of one's own contributions. But I wouldn't want a rule of etiquette that effectively leaves the already overconfident free to natter on and reinforces the insecurities of those who are already underconfident.

And some of the "advice"--although, again, I understand that it's just humor--is just plain wrong, at least in a workshop setting and probably in any setting. We have all heard--and most of us have asked--workshop questions that go on far too long; but, to take one example, "Could you write your question on twitter" seems like just an awful guideline.

Here's a general suggested guideline on whether to ask a workshop question: Are you serving the paper, author, and/or workshop process, or are you serving yourself?

If your question is meant to provide a useful challenge, refinement, or improvement to the paper, then it's probably OK. The fact that you might, God forbid, be wrong or, worse still, sound dumb should not stop you from asking the question. The fact that the question might draw on your own work is not disqualifying, if the question would serve the paper and not just yourself. The fact that the question might start with "In my experience" is perhaps a warning flag, but not in itself disqualifying. Maybe your experience is relevant. In any event, it's not quite right to say in response to this prospect, as the chart does, "No-one came to hear about your experience. They came to hear from the speaker." They came for the paper, not the speaker. If your question would serve the paper, then so be it. For that matter, there are some speakers out there, and not just audience members, who need to remember that they are there to serve the paper and not themselves; some brush-off answers end up demonstrating the speaker's own cleverness and facility at debate while batting aside genuine problems with a paper.

There are some special cases. In particular, what do you do if your question is really just a fundamental disagreement with the foundational normative (not factual) premises of the paper? My answer here varies. If the paper starts with an assumption in favor of equality rather than liberty, to offer a somewhat cartoonish example, there may not be much point in questioning it on that basis. If the paper is an "originalist" take on some question, I doubt there's much point in taking on all of originalism in a question. On the other hand, there are many papers that take their foundational premises for granted, don't spell them out, don't address well-recognized internal problems with that premise, and so on. Asking the speaker (or the paper) to spell out its assumptions better can be a valuable service.

In any event, I think the single question I have offered above is a fairly useful general guideline in determining whether to ask a question at a workshop or not than the one presented in the chart. Again, I appreciate that it was just a joke chart. But since it troubled me, and given that Howard offered it his approval, and in light of the background concern raised by that commenter, I figured I'd offer my two cents.

Wednesday, May 07, 2014

Geography and Town of Greece v. Galloway: A #Prawfspitch

I've been thinking and, in draft, writing about geography and church-state relations over the last couple of years. It seems to me a fertile area in which not enough work has been done, and given the (also underexploited) overlap between race and religion, it is an area in which much more could be done to adopt or adapt materials like this. (More directly on point, I strongly recommend this book, which summarizes a series of books.) The subject has been much on my mind in the last two or three days while reading and commenting on Town of Greece v. Galloway. I assume plenty of people are sharpening their keyboards to write longer scholarly work on the case, and I thought I would offer, for what little it's worth, some ways in which the opinion more or less obviously intersects with questions of geography and church-state relations. All of these suggestions are yours, for the price of a mere footnote.

1) The most obvious connection is the piece of Justice Kennedy's ruling that concludes that the town's failure to reach outside its boundaries in seeking people of other faiths to give invocations, which was particularly important in the case given the fact that there were synagogues located nearby and serving the town's Jewish population, does not constitute a violation of the Establishment Clause. Justice Kennedy writes: "The town made reasonable efforts to identify all of the congregations located within its borders and represented that it would welcome a prayer by any minister or layman who wished to give one. That nearly all of the congregations in town turned out to be Christian does not reflect an aversion or bias on the part of town leaders against minority faiths. So long as the town maintains a policy of nondiscrimina­tion, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing." As I said in my SCOTUSblog post, this is both reasonable and troubling. It makes some administrative sense, and reflects the idea that an invocation at a local government meeting will serve and mirror the local community. But political borders are neither purely adventitious nor utterly innocent, whether one is thinking about race or religion. (Mark Tushnet has a post raising similar questions.)

2) On a related point that I mentioned but buried deep in my earlier post today, Justice Kennedy wrote a concurrence in the Kiryas Joel decision that deserves to be read alongside and against his opinion in Town of Greece. In saying so, I'm not suggesting that the two are irreconcilable. I do think, however, that one might help illuminate the other, and perhaps bring out some important tensions.

3) A broader point of the geography of church and state is raised by the Town of Greece decision, one that we generally pay less attention to because of our assumptions about the national uniformity of constitutional law. Again, I would recommend here the book One Nation, Divisible: How Regional Religious Differences Shape American Politics, by Mark Silk and Andrew Walsh. That book, summarizing a series of other books, discusses the different ways in which religion tends to manifest itself in different regions of the United States, and the different forms of church-state relations and controversies that these regional differences produce. These differences have and will certainly play out in different forms of and fights over legislative prayers. Justice Kennedy's description of the nature and purpose of legislative prayers, however, assumes that legislative prayers have a particular, universal form and function, and that divisions over them, and solutions to those divisions, will be equally universal. In deciding Establishment Clause cases, the Court may sometimes make assumptions and offer solutions that might work well in some parts of the country and not in others.

4) There's also a somewhat more abstract question of the geography of church and state involved in Town of Greece; it appears mostly in Justice Kagan's dissent, about which I still hope to say something. Kagan writes, in the opening lines of her dissent: "A Christian, a Jew, a Muslim (and so forth)—each stands in the same re­lationship with her country, with her state and local communities, and with every level and body of govern­ ment. So that when each person performs the duties or seeks the benefits of citizenship, she does so not as an adherent to one or another religion, but simply as an American." This idea itself reflects a longer set of assumptions about the nature of political sovereignty and the place of religion within nation-states. In his book Pluralism, William Connolly describes it as follows: "The Westphalian accord in early modern Europe recognized the sovereignty of each European state over its citizens by pushing religious differences into the private realm." Of course, this idea has always been subject to refinement and contestation. Kagan's dissent, which I find somewhat underdeveloped and unsatisfying on this point, might be fruitfully explored in this light.

5) More obviously, there is Justice Thomas's concurrence, which pushes again on the question of whether the Establishment Clause is or is capable of being incorporated against the states. (This is the section that features the soon-to-be-famous words, "As an initial matter, the [Establishment] Clause probably prohibits Congress from establishing a national religion.")

6) On a more direct note, I hope that one of the people writing about these kinds of questions will be Rich Schragger of UVa. His work on the relationship between localism and church-state law is wonderful, and I think he would have a lot to say about this case that would be surprising, one way or another. His co-authored post on Town of Greece is good, but I think based on his past work that if he expanded on the introduction provided there, it might take him to very different places than his co-authors. I would definitely read that article.

Learning From Bedrosian, Cavanaugh, and Town of Greece v. Galloway

Rushing to speak about the latest church-state Supreme Court judgment is not just a sport for law professors. Legislators can do it too. It did not take long for Al Bedrosian, a member of the board of supervisors of Roanoke County, Va., to speak up, in rather moronic fashion. Bedrosian had urged the board to reject a nonsectarian prayer policy. After the ruling, he made clear not only that he did not want a non-sectarian policy, but that he wanted individual supervisors to approve individual prayer-givers and that as far as his own choices were concerned, he would not be inclined to approve "representatives from non-Christian faiths and non-faiths, including Jews, Muslims, atheists and others." Quoth Bedrosian: "I think America, pretty much from founding fathers on, I think we have to say more or less that we’re a Christian nation with Christian ideology . . . . If we’re a Christian nation, then I would say that we need to move toward our Christian heritage." In the story linked to above, Dahlia Lithwick of Slate writes that "[Justice] Kennedy’s plurality opinion Monday [in Town of Greece] opened the door to precisely this line of argument as a result of all his airy talk of religious tradition and history," that the opinion "open[s] the door for Bedrosian to zone out the Muslims and the Jews," and that "[t]he real worry after Town of Greece is that we get to pick, apparently by popular acclaim, which are the American religions and which are the un-American ones." More on this below.

Also on my mind these last couple of days has been a government official from my home state of Alabama, the wonderfully named Twinkle Cavanaugh, president of the Alabama Public Service Commission. Last summer, a minister, described as a friend of Cavanaugh's, gave an invocation at a commission meeting in which he begged God's forgiveness for our nation's wicked ways, saying, ""We've taken you [God] out of our schools and out of our prayers. We have murdered your children. We've said it's okay to have same-sex marriage. We have sinned and we ask once again that you forgive us for our sins." (Of note, given one of the debates in the Town of Greece case: the video suggests the minister faced the audience, not the board.) Cavanaugh defended the prayer, naturally.

What does Justice Kennedy's opinion in Town of Greece v. Galloway have to say to people like Bedrosian or Cavanaugh--and what do incidents like this say about the opinion?

I think Lithwick, despite her parsing of the opinion, is mostly wrong to say that it opens the door to a policy like Bedrosian's or to the policy that someone like Cavanaugh might opt for. Kennedy is clear, or clear-ish, that "If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion, . . . [t]hat circumstance would present a different case than the one presently before the Court." The purpose of an invocation is supposed to be to solemnize an event, not to serve as a soapbox or proselytizing forum. A pattern "of prayers that over time denigrate, proselytize, or betray an impermissible government purpose" may establish a constitutional violation. While a prayer policy that, tracking local borders, ends up being nearly entirely Christian will not transgress the Establishment Clause, the governmental body in question must "maintain[ ] a policy of nondiscrimination." In his concurrence, Justice Alito adds that he would have viewed the case "very differently" if the omission of local synagogues by the Town of Greece "were intentional."

It is quite clear that Bedrosian's policy violates these precepts. It seems equally clear that if there were a "course and practice" on the part of someone like Cavanaugh of inviting invocations that served as a general opportunity for rather opinionated and potentially denigratory prayer rather than solemnization, a court following Town of Greece would be empowered to act. Active, intentional "zoning out" or "picking" of particular faiths, or using a prayer policy as a forum for moral revivalism rather than somewhat platitudinous (if sectarian) solemnization, are not now entitled to free rein.

I said "mostly." As Howard writes elsewhere on this page, and as Chris Lund writes in his contribution to the SCOTUSblog symposium, it will be more difficult to show a "course of practice" than to single out particular prayers as impermissible. Cavanaugh might get one, two, or several byes, although if she maintained a pattern or policy of inviting invocations like the one described above, in theory the practice ought to be redressable. There is also the question of how interested the Court really will be in these issues going forward, and how lower courts will respond; Town of Greece gives them adequate tools, but there is no guarantee they will use them. And while I think Lithwick's particular description of "zoning out" minority faiths is wrong, it is true that the Court demonstrates a somewhat touching faith in political borders, and would appear to have no problem if a prayer policy that was not actively discriminatory nonetheless ended up excluding minority faiths simply because the local houses of worship within a set of political borders belong to one faith. (Someone will have to take up the work of reading Kennedy's opinion in Town of Greece against his concurrence in the Kiryas Joel case.)

Howard notes that not every public official will be as blatant as Bedrosian. That leads me to my last point, which has to do with what Justice Kennedy might learn from Bedrosian or Cavanaugh rather than the other way around. Kennedy paints a rather neat picture of legislative prayer as "lend[ing] gravity to public business, remind[ing] lawmakers to transcend petty differences in pursuit of a higher purpose, and express[ing] a common aspiration to a just and peaceful society." And in defending the practice, he writes, "A test that would sweep away what has so long been settled would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent." Those words, taken together, suggest that there is a long and calm practice at work, and that suddenly erasing it would open up an unfortunate new front in the culture wars.

But legislative prayer is not just an unbroken, calm tradition. (If it is that at all, but nothing turns on that for my point here.) It is also, at least sometimes, a deliberate, and deliberately introduced, front in the culture wars. If Bedrosian wanted mostly Christian prayers, he could probably have relied on religious demographics and political borders to do his work for him. But that does not mean his blatant statement the other day was a clumsy error. He may have wanted the attention more than he actually wanted the prayers. He may have wanted to speak to a subset of the primary voters of Roanoke County more than to the Christians of Roanoke County as a whole. By the same token, I assume Cavanaugh sincerely believes what the minister who gave that invocation had to say. But even more strongly, I suspect that, with one eye on future primaries and future offices of her own, she would rather be seen to be condoning a divisive, non-solemnizing prayer than to select ministers who would make milder statements and draw no attention to her at all.

That does not mean Kennedy's descriptions of legislative prayer are always wrong, or that the opinion is utterly wrong. (As I've written elsewhere, I think legislative prayer is a constitutionally questionable practice; and as I wrote yesterday, I have issues with Kennedy's opinion. But not necessarily because of Bedrosian or Cavanaugh.) But it does suggest that there is too much milquetoast in his description of legislative prayer. It also suggests that his description of the occasions for political division along religious lines is too limited. It is true that getting rid of legislative prayer at one fell swoop would be divisive. But it's also true that sometimes, particularly in the hands of primary-minded politicians, legislative prayer can be intended to divide, not to solemnize. In the short run, at least, given Town of Greece, I suspect that the most effective forces in counteracting this use of legislative prayer for deliberately divisive political purposes will be the supporters of legislative prayer, who have an obligation to condemn this kind of behavior, and not its general opponents.

Tuesday, May 06, 2014

Town of Greece v. Galloway on SCOTUSblog

SCOTUSblog is running a series of quick-take reactions to the decision in Town of Greece v. Galloway. Here's the index, and here is my short piece on Town of Greece and Scottish menswear; stay tuned for my friend and co-blogger Rick's commentary as well, and in the meantime definitely read Chad Flanders's piece. I hope to have other commentary here in time. Enjoy.

Friday, May 02, 2014

Weekend Reading: "The 'Law' in Dworkin's Treatment of Law and Religion"

Just posted on SSRN is my forthcoming short piece, "A Troublesome Right": The 'Law' in Dworkin's Treatment of Law and Religion. Comments and corrections welcome, as always. Here's the abstract:

In his final book, Religion Without God, Ronald Dworkin offers an eloquent and gloriously compact treatment of a massive subject--life, death, eternity, and the human condition. He also offers an application of his views on those broader questions to a narrower, more practical issue: the law of religious freedom. In this paper, I focus narrowly and critically on Dworkin's treatment of the law of religious freedom.

Dworkin asks whether there is a principled "justification for offering religion a right to special protection that is exclusive to theistic religions," and if not, what the scope and nature of religious freedom should be. He ultimately proposes, in effect, to interpret "religion" broadly for purposes of "freedom of religion" but demote that freedom altogether. He would treat freedom of religion as "a very general right to what we might call 'ethical independence'" rather than as a "special right." As such, subject to some constraints, government could infringe freedom of religion without having to show a compelling interest in doing so. Dworkin would also, it appears, substantially limit the occasions on which government can or should provide legislative accommodations for burdened religious practices. What we have, when Dworkin is done, is basically a narrow version of the Supreme Court's decision in Employment Division v. Smith, but without that decision's receptivity to legislative rather than judicial accommodation of religion.

There is much to admire in Dworkin's broader arguments about religion in the book. His arguments about the law of religious freedom are quite another matter. The accuracy and persuasiveness of Dworkin's arguments on this issue rest substantially on three things: his statements about current law; the initial moves by which Dworkin clears the ground for his demotion proposal; and his applications of the demotion proposal, which he suggests could help lower the temperature of the culture wars. I argue that all three elements of Dworkin's argument for the demotion of religious freedom are deeply flawed.

Thursday, May 01, 2014

Why Are You Here...

Perhaps I put that badly. I just wanted to point out that Balkinization has had a lot of fantastic posts lately. In particular, it's running a great series of responses to Bruce Ackerman's latest "We the People" book, The Civil Rights Revolution. And it has run a number of interesting posts recently by contributors to a Yale Law Journal feature on "Federalism as the New Nationalism." To paraphrase Apu, please go away and read Balkinization, and come back soon.

Monday, April 28, 2014

"Hell on earth" and "jackbooted authoritarianism"

Sparked in part by this Robert George post--which, I must say, refers to a very serious underlying problem--I was inspired to revisit this book review (of a book by Gertrude Himmelfarb) by Richard Posner, which I think is one of his better and more enjoyable book reviews. (That's saying a lot; book reviews, which I tend generally to love, are a genre in which he does some of his best work.)

While I'm on this inspiration kick, I would add that Ted Cruz's rather astonishing line the other day describing the Bundy standoff as a product of the Obama administration's employment of the "jackboot of authoritarianism" reminded me of one of my favorite passages from Tom Wolfe, quoted at length in this ancient post from the Volokh Conspiracy. Here's part of it:

Support [for Wolfe's view that fascism wasn't coming to America] came from a quarter I hadn't counted on. It was [Gunter] Grass, speaking in English.

"For the past hour, I have my eyes fixed on the doors here," he said. "You talk about fascism and police repression. In Germany when I was a student, they come through those doors long ago. Here they must be very slow."

Grass was enjoying himself for the first time all evening. He was not simply saying, "You really don't have so much to worry about." He was indulging his sense of the absurd. He was saying: "You American intellectuals — you want so desperately to feel besieged and persecuted!"

He sounded like Jean-François Revel, a French socialist writer who talks about one of the great unexplained phenomena of modern astronomy: namely, that the dark night of fascism is always descending in the United States and yet lands only in Europe.

Not very nice, Günter! Not very nice, Jean-François! A bit supercilious, wouldn't you say! . . .

Friday, April 25, 2014

"More 'Vitiating Paradoxes': A Reply to Steven D. Smith--and Smith"

As I've said here many, many times, I'm a big fan of Steven D. Smith and of his work on law and religion. I don't always agree with it, but I frequently do and I always find it bracing. His latest book, The Rise and Decline of American Religious Freedom, is well worth reading. A lecture he gave on the subject of the book, drawn substantially from the last chapter of the book, will be published shortly by the Pepperdine Law Review. I have one of several replies that will accompany the lecture. It's somewhat awkwardly titled More "Vitiating Paradoxes": A Reply to Steven D. Smith--and Smith, and it's now available on SSRN. Comments are welcome, of course, and I believe Steve will have a response to the replies. Here's the abstract:

This is a reply to Steven D. Smith's Brandeis Lecture, "The Last Chapter?" That lecture is substantially drawn from the concluding pages of his fine recent book, The Rise and Decline of American Religious Freedom. In the lecture and the book, Smith explores what he calls some "vitiating paradoxes" of some of the key concepts that undergird the conventional account of American religious freedom, and argues that those paradoxes may render religious freedom especially vulnerable in an age of increasing liberal egalitarianism. He also offers a competing account of religious freedom, one that involves both a "soft constitutionalism" approach to the Establishment Clause and a revival of some form of "freedom of the church."

My reply is basically an internal account, supportive in some respects and critical in others. One of the main contributions that Smith has made to law and religion scholarship over the years is his skillful deployment of critical tools to reveal flaws in the underpinnings of Religion Clause law and theory. He is, I suggest, the charter member of the law and religion branch of a rather small but valuable school: Conservative Critical Legal Studies. In this reply, I take his critical views on board and wonder where, if anywhere, the "potentially vitiating paradoxes" that he identifies in the conventional account of religious freedom end; I also apply Smith's critical framework to the competing account of American religious freedom that he offers. In particular, I question his recommendation of some form of "soft constitutionalism" limited essentially to the Establishment Clause; explore the difficulties involved in what I suggest is a growing reconciliation, including among conservatives, to the Supreme Court's decision in Employment Division v. Smith; and ask whether we might not view arguments for "freedom of the church" as a kind of salvaging device for those who favor a "soft" or jurisdictional reading of the Establishment Clause, and who have come around on Employment Division v. Smith, while still seeking to preserve some measure of church autonomy.

I should add that my observations about "freedom of the church" as a salvaging device are not meant as an indictment or a charge that it is intentionally being offered for that purpose. (Nor would I assume that some of the recent arguments against it, or against legal doctrines related to it, are offered insincerely or strategically.) I have written repeatedly* and quite supportively about freedom of the church and/or institutional religious freedom. But, as I've written elsewhere, I also think it's a valuable exercise for its friends, and not just its adversaries, to take a critical look at the concept, even (or especially) if they ultimately support it. Similarly, as new (or very old, depending on your perspective) doctrines and arguments emerge in a field, I think it's important to examine how they fit in with the web of existing outcomes and existing or changing doctrines. It's here, I think, that my "salvaging device" argument comes into play. But this can be a more or less organic development rather than a step in some grand, secret plan. With that caveat in mind, enjoy.

* (Need I add that this book would make a splendid belated Administrative Professionals Day gift?)

Friday, April 18, 2014

Three (and a Half) Takes on Animus

I have a "jot" on Jotwell today about Steve Smith's forthcoming piece, The Jurisprudence of Denigration, which offers a critical but (and?), I think, very intriguing take on the use of animus in United States v. Windsor. As I say in the jot, hopefully correctly, one may support the outcome in Windsor and still think that Smith offers some useful and provocative comments on why contemporary constitutional and moral discourse may lend themselves to the use of animus rather than alternative forms of argument in this area. I suspect that Steve and I may often have sharply different views on some of the underlying issues here and elsewhere, but I always find his work productive and disturbing.

It's an interesting coincidence that this jot appears a couple of days after I noticed a new paper by Dale Carpenter, Windsor Products: Equal Protection From Animus, forthcoming in the Supreme Court Review. I haven't read it thoroughly yet, but so far I find it a clearer and better description and defense of the concept of animus than much I have seen elsewhere, and certainly than Justice Kennedy's own writing on the subject. I look forward to reading the whole thing more carefully. It's not up on the website yet, but I should also note that the Harvard Law Review's latest issue has a good package of pieces on developments in this legal area, with a clear and lovely scene-setting introductory piece (although I'm not convinced that President Obama was the right person to quote at its conclusion) and an interesting chapter on, again, animus. Also recommended.

Wednesday, April 16, 2014

Do Chemerinsky and Menkel-Meadow's Views on Curriculum Represent a Consensus View in the Legal Academy?

I'm focusing on only one piece of this op-ed by Erwin Chemerinsky and Carrie Menkel-Meadow. They write:

Some, including the Bar Association’s task force, have suggested that states should reduce the level of undergraduate education required to take the bar exam. Yet the profession benefits enormously by having attorneys who have undergraduate degrees in other fields: This makes them more well rounded and better-educated citizens, as well as better lawyers. Many other countries have begun to recognize this, and nations like South Korea, Japan, China and Australia have recently shifted to the American model of requiring an undergraduate degree before law school.

Another common suggestion — also made by President Obama — is to reduce law school to two years. This is a terrible idea.

The profession needs law schools to produce lawyers who are better prepared to practice law, not less well trained. That would be impossible in two-thirds of the time. If law school were of just two years’ duration, the first things to be cut would be clinical education and interdisciplinary courses, which are the best innovations since we went to law school in the 1970s.

We agree that legal education could benefit from further innovation, but not in the ways many of the critics advocate. Law schools need to teach a greater diversity of subjects to improve legal judgment and decision-making. In this respect, law schools should emulate business, architecture and planning schools. These have adapted to new economic realities by emphasizing the teaching of leadership, corporate governance, new finance and negotiation skills.

Law school faculties, in their teaching and their scholarship, must deal with the emerging problems of the 21st century. Law schools need to develop new courses to provide students with the expertise to deal with the crucial problems of our time in fields like banking law, national security, conflict resolution, food safety, Internet law and migration policy. There should be “problem-based” seminars in fields such as public health, homelessness, environmental habitat regulation and world peace.

None of this will be possible if law school is cut to two years. Sometimes, less is not more. And sometimes, the rhetoric of crisis leads to proposals that are far worse than the actual problems we face.

I agree with the last sentence, as it turns out, although that has nothing to do with whether there is a crisis or not (I'm not sure the label is terribly useful, but neither is it outrageous), or whether law school reform is necessary (law school reform is always necessary). It's not just that treating reform in this area as a response to a crisis may lead to ill-considered reforms, although I think that is true. Rather, I'm worried that if the "crisis" is seen as having passed, it will sap the will and energy to think about useful long-term ways to reform or remake law schools. Law schools are ostensibly faculty-governed, and faculty have an ongoing ethical and professional obligation to monitor what they are doing and think about how they could do it better, crisis or no. I also agree that increasing and even mandating finance and accounting related offerings would be a good idea for law schools.

That's a side note. What I am really interested is in asking whether Chemerinsky and Menkel-Meadow's views represent a consensus view in the legal academy. I'm pretty sure the answer is "no." Of those interested in law school reform issues, as far as I can tell, many believe there is nothing wrong with a two-year law degree, or with a two-year degree for licensing purposes with the option of additional years of study. Of those who prefer a required third year of study, I suspect that a fair number of them favor it for traditionalist reasons and are not looking to redo the third year altogether; of that group, some hold those views strongly and others are just casual defenders of the status quo. Of those who favor a third year of study that does different things than the current curriculum does, I suspect that many of them would rather have that year emphasize lawyering skills and not "21st century" issues like "national security, conflict resolution, food safety, Internet law and migration policy."

And, sadly, I suspect a large (but shrinking?) number of law professors are still just not that concerned with these issues at all. Given a relatively costless choice like, say, going to an AALS panel on law school reform or hanging out in the hotel lobby, a substantial number will still choose the latter option. (Although I will note that the numbers of people attending those sessions, and voicing interest in such issues at their own institutions, has certainly grown.) In an ostensibly faculty-governed environment in which the faculty often don't govern much and mostly do their own thing in their own classroom, apathy is always a problem.

None of this makes Chemerinsky and Menkel-Meadow wrong, of course. (I think they are.) But I wouldn't treat their views as representative of the legal academy.

One last word, on “'problem-based'” seminars in fields such as public health, homelessness, environmental habitat regulation and world peace." I think the idea of problem-based seminars on public policy issues is a good one. (And not just public policy issues: they could and should work with issues involving the private sector as well.) In my view, the benefit of such seminars, if they're done right, will derive substantially from bringing in people other than lawyers as students and speakers. Most public (or private) policy issues involve a variety of stakeholders with different skills and interests, and this would be a useful way to learn what (if anything) lawyers can contribute, how they should deal with these different stakeholders, and what the non-lawyer stakeholders think is good or bad from their experience working with lawyers.

But not on "world peace," for God's sake! Too many law schools are already too intent on being "national" schools dealing with national or global issues, emulating schools at the top of the food chain. They are too little concerned with local issues, with the fact that they serve a local market, with forging relationships with local lawyers and stakeholders, and with performing actual services for the state, city, or region in which they are located. Regardless of the conclusions these seminars draw, the recommendations they make, or the service they provide--which, obviously, need not fall into some cliched and rather ideologically particularized vision of "social justice"--it may be that by focusing on difficult local issues, these seminars could provide a useful education to the students, expose students, experts, and stakeholders to each other and help them to sit down at the same table, provide the kinds of recommendations that might be useful to local governments (or private interests) in an age of straitened resources in which many states and localities simply buy public policy solutions off the rack from various think tanks and interest groups, and actually give something back to the region in which a law school is located.

None of this is adequate reason, in my view, for a mandatory third year; and the more national or global the subject these seminars handle, the less useful and educational they will be. Nor must or should these courses have a specific, heavy ideological tilt; they're about problem-solving, not political indoctrination. (Maybe a seminar on public policy issues surrounding a local crime problem would recommend stop and frisk! Or a seminar on why a locality is having trouble growing new businesses would conclude that local licensing and zoning requirements are overly burdensome and monopolistic and should be lessened or repealed! Who knows?) But the idea itself is a good one.

Saturday, April 05, 2014

Weekend Reading Squared

I'm grateful to Randy Kozel of Notre Dame for reviewing my book First Amendment Institutions. (Hell, I'm grateful to him for reading it.) His SSRN version of the review, forthcoming in the Michigan Law Review, is here, and the abstract follows. The book is available here and makes a fine Passover or Administrative Professionals Day present.

This Review makes two claims. The first is that Paul Horwitz’s excellent book, "First Amendment Institutions," depicts the institutionalist movement in robust and provocative form. The second is that it would be a mistake to assume from its immersion in First Amendment jurisprudence (not to mention its title) that the book's implications are limited to the First Amendment. Professor Horwitz presents First Amendment institutionalism as a wide-ranging theory of constitutional structure whose focus is as much on constraining the authority of political government as it is on facilitating expression. These are the terms on which the book's argument — and, to a large extent, the leading edge of contemporary institutionalist thinking — ought to be received, understood, and evaluated.

Friday, April 04, 2014

Is a Vote For Campaign Finance Reform a Vote for Brendan Eich? (And Vice Versa)

Whatever I may feel about boycotts and similar actions in general, or the pressure for the resignation of Brendan Eich in particular, I must make clear that I do not think Eich was defenestrated. Jan Masaryk was defenestrated; Eich was subjected to highly disputable uses of market pressures. There's a difference, and as a sometime conservative I don't care for the degradation of the English language or for Marcusian rhetoric.

That said, I think today's Room for Debate argument in the New York Times, and especially the contributions by Leanne Pittsford and Leslie Gabel-Brett, both of whom support the events that led to Eich's deposition, is quite telling. It wasn't until reading those pieces that I fully appreciated the connection between this story and the widespread discussion in the same week of the Supreme Court's decision in McCutcheon and the general debate over campaign finance reform and the First Amendment. Google "McCutcheon" and "money is not speech," or run a Westlaw search for the same phrase, and you will find plenty of believers in this view. (Not everyone, and some supporters of campaign finance laws, including Larry Lessig, have called the slogan an unhelpful "gimmick." But it is a widely repeated slogan--sometimes in the Supreme Court itself.) Yet Pittsford writes, "[L]et’s be honest, writing a $1,000 check is a very specific, assertive action. It's very different than just having a belief. If you’re willing to put down your own money, it means you feel strongly about it." And Gabel-Brett makes quite clear her view that Eich's donation itself was expressive conduct. The two cases are obviously not identical. Still, it is startling to see in the same week, and sometimes roughly from the same side, outrage at the view that money is speech and the vehemently expressed view that Eich spoke by donating money.

Pittsford's contribution is also worth reading in light of the recent and ongoing arguments about the Hobby Lobby case and the question whether corporations can assert a statutory or constitutional burden on religious exercise. Here is a key paragraph of her piece: "The problem is that when you're a progressive company like Mozilla that champions progressive policies and open access, you tend to attract employees who feel the same way, and that creates an open progressive culture, which is one of Mozilla's strongest assets. You can't have a leader who doesn't reflect those views." Interesting use of the second person singular pronoun in light of last week's arguments!

Plus ca Change

I'm rereading Adam Sisman's very well-done and readable biography of the historian Hugh Trevor-Roper. Here's a passage in which Trevor-Roper, a thoroughly nasty and brilliant man, describes the work of his colleague Lawrence Stone: "[He] wrote articles which, by the triple technique of a challenging thesis (generally a mere exaggeration of a borrowed thesis), a dogmatic ex cathedra style, and a portentous array of documentation . . . were taken everywhere, even by the elect, as being important contributions to scholarship." The next passage in the biography adds: "In later life Stone admitted that he saw nothing wicked about going into a different field of study 'with a pickaxe and digging out the gold and getting out fast.'"

Tuesday, April 01, 2014

Wake Up! It's April Fool's Day!

My favorite part of April Fool's Day--apart from the fact that it's also the day this year for my students to fill out their evaluations forms; that should be hilarious!--is Larry Solum's Legal Theory Blog. His entries almost always pass the "I'm going to click through, just to be sure" test. Enjoy!

As a bonus, here's an equally funny academic parody story in the New York Times, which I didn't think did this kind of thing. Titled "College Classes Use Arts to Brace for Climate Change," it's a must-read side-splitter. Again, enjoy.

Monday, March 31, 2014

Two Good Readings

The first is short but I couldn't resist. It comes from a speech Gov. Chris Christie gave this weekend at the Republican Jewish Coalition. In that speech, Christie said, "In New Jersey, nobody has to wonder whether I am for them or against them." Granted, the speech was about pandering on Israel, not about Bridgegate, but still--as they used to say on Archer, phrasing!

The second is slightly more serious. Through Arts & Letters Daily, there is a nice compliation of tributes to Daniel Kahneman at Edge.org. The contributions are mostly interesting, but for the writers among us I wanted to offer this quote from Jason Zweig, a journalist and one-time collaborator of Kahneman's who offers a difficult but bracing lesson he learned from Kahneman:

To most people, rewriting is an act of cosmetology: You nip, you tuck, you slather on lipstick. To Danny, rewriting is an act of war: If something needs to be rewritten then it needs to be destroyed. The enemy in that war is yourself.

After decades of trying, I still hadn't learned how to be a writer until I worked with Danny.

I no longer try to fix what I've just written if it doesn't work. I try to destroy it instead— and start all over as if I had never written a word.

Danny taught me that you can never create something worth reading unless you are committed to the total destruction of everything that isn't. He taught me to have no sunk costs.

Sunday, March 30, 2014

Thoughts on Ackerman on Dignity

Bruce Ackerman has a lovely op-ed in the Times today titled "Dignity is a Constitutional Principle." He writes, anent the recent same-sex marriage cases and future ones, that "the [Supreme Court] should reinforce its dignitarian jurisprudence by stressing its roots in the civil rights revolution." Relating things to his general We the People project of the last couple of decades--and congratulations to Ackerman for the recent publication of the third book in that project, We the People, Volume 3: The Civil Rights Revolution--he argues that the contemporary Court should look back not just to its earlier decisions but to the congressional debate over civil rights legislation in the 60s, in which various figures "articulat[ed] fundamental principles that Americans should consider in defining the terms of constitutional equality." He concludes:

This constitutional legacy should also shape our understanding of future civil rights struggles. Consider the situation of undocumented immigrants as they seek to attend school, get a job or drive to the supermarket. They face pervasive humiliation in sphere after sphere of social life. Does this not amount to a systematic denial of the “equal protection of the laws” guaranteed by the Constitution to all persons “within the jurisdiction” of the United States? . . . . As we search for guidance on the great constitutional issues of our own time, the place to begin is with the words of Humphrey as he explained why Americans could no longer “justify what we have done to debase humanity.” He argued that we “do not have to be lawyers to understand, ‘Do unto others as you would have them do unto you.’ ”

Beautifully written, to be sure. Yet, even if we concede that dignity is a constitutional principle, it leaves me with some questions. 1) Assuming for purposes of argument that dignity is a constitutional principle, is it a freestanding principle? (I don't take Ackerman to be arguing that in this op-ed.) 2) Assuming that dignity is not a freestanding principle but one that helps courts limn "the terms of constitutional equality" or of other constitutional provisions, does that say anything about how we should use it? Given its sponginess and, at best, only semi-textual quality, couldn't the recommended interpretive rule here be that courts should use dignity as a constitutional principle as sparingly and conservatively as possible? 3) Must dignity as a constitutional principle be subject to judicial application at all? Couldn't it be a meaningful but nonjusticiable constitutional principle--one that courts might afford some judicial margin of appreciation when used by legislatures but not treat as a principle that is independently enforceable by courts? 4) How well and clearly did (or do) dignity's champions actually "articulat[e]" the "fundamental principles" of dignity as a constitutional concept? (See, for instance, this paper by Neomi Rao.) 5) Does Ackerman intend what he says about "undocumented immigrants" to have any judicial purchase, or is he arguing only that it ought to guide We the People as citizens and representatives in our political decisions? He might be right about the latter suggestion without that implying anything about the former suggestion. We might agree that "pervasive humiliation in sphere after sphere of social life" is a constitutionally inflected issue that demands legislative redress, without believing that the courts are well-suited or even entitled to remedy it through reference to dignity as a constitutional principle, freestanding or otherwise--that, for example, the denial of drivers' licenses to "illegal aliens" is an indignity but not a judicially enforceable violation of the Constitution.

Friday, March 28, 2014

Weekend Reading: Commonweal on Legislative Religious Accommodations

Here's a newly published piece in Commonweal, coming out in the print issue next week and available outside the paywall online, about the recent debates over legislative accommodations for religion. Here's the introduction:

After Arizona Governor Jan Brewer vetoed a bill last month that amended that state’s Religious Freedom Restoration Act, onlookers on both sides of the culture wars may have breathed a sigh—of relief or of frustration, depending on which side they were on. I hope they enjoyed it, because the break’s over.

The Arizona controversy wasn’t the first and it won’t be the last. Similar bills are in various stages of development in Mississippi, Georgia, Oklahoma, and elsewhere. Brewer’s veto, with its implication that the national and state Republican establishments and business interests would oppose such legislation if it aroused too much negative attention, may tamp down the fires in some states. Elsewhere, it will only stoke them. There are some serious issues here, they are not going away, and they are rarely described accurately. In other words, we are getting yet another master class on how to hold a culture war in America. Here’s a short explanation of the issues and a few lessons for combatants and onlookers alike.

Wednesday, March 26, 2014

Dorf on Ideological Polarization and Reversal in Hobby Lobby

Mike Dorf has an interesting column at Verdict arguing that the oral argument in Hobby Lobby suggests that the arguments over religious freedom have become more ideologically charged and, in various ways, display a reversal in views between liberals and conservatives. I certainly agree, as I wrote yesterday, that these issues have become more charged than they have been for some time. And although I might not characterize the whole thing the way he does, I do find much to agree with in what he writes. In particular, I agree with him that the case, or at least the underlying issues it hints at, present a fairly stark conflict between the basic values of liberty and equality. (I also have a piece coming out on this in Commonweal next week; I'll link to it when it becomes available.) Each side may at times exaggerate this conflict, and at other times may argue that, depending on a particular definition of those terms or of the facts, the "correct" outcome presents no true conflict between liberty and equality. (For instance, because there is "no mandate.") But there is a conflict, and although we can and should attempt to manage it in practice, it is real and ultimately cannot be perfectly resolved. I do have a couple of points I would add to what he says.

First, Mike focuses correctly on the culture war aspects of the case, but his description is perhaps a little lopsided. He writes: "The culture war of the last couple of decades shattered the bipartisan alliance that gave rise to RFRA. In the ensuing years, the right has increasingly sought to portray Christian religious traditionalists as a beleaguered minority." He is certainly right that the RFRA alliance seems to have shattered, at least on this issue and perhaps more generally. (Again, see my post yesterday, and a post by Tom Berg at Mirror of Justice, on a striking recent letter arguing that, in large part for "expressive" or symbolic reasons, any state RFRA legislation right now is a bad idea, even if the same legislation would have been fine twenty years ago.) I probably share the druthers of the left more than on the right, at least on most issues. But I think Mike's description emphasizes the right as a culture-war actor too much and doesn't really give equal time to the left's role in the culture war. On Facebook, every time I say something of the sort, I get comments about "false equivalency." So let me note that I am not making an equivalency claim, false or otherwise. I'm simply saying that a culture war typically involves two actors and that he, or we, might attempt to consider how conservatives or religious traditionalists would describe the same period of time. "Liberals who were willing to enact RFRA to protect minority religions from direct interference have started to balk at the idea of a religious right that goes that far," Mike writes. From the other side, we might say that religious conservatives have started to balk at an egalitarian left that not only has been successful in changing the culture, but increasingly views religious claims as dangerous or inconsequential, is increasingly pervasive in enacting those cultural changes into law, and increasingly rejects any separation between public and private on these issues.

Mike also writes that "Hobby Lobby involves the ACA, a law that conservatives have fought at every turn, in every possible venue." Fair enough! But my reading of the exemption debate over the contraceptive mandate, although much more optimistic and perhaps generous than that of some of my religious friends, is that a dynamic of refusing to compromise on the ACA, and particularly on its contraceptive provisions, was also at work on the left, for various principled and political (both electoral and interest-group related) reasons. The exemptions granted could have been more generous, and certainly started off very narrow, but they faced West Wing resistance every step of the way. (See, e.g., this story.) There are, again, political and ideological dynamics at work on both sides here.

Finally, Mike writes that the conservative/religious "culture war" view has "manifest[ed] itself in ever more extreme claims." He might think more about the dynamics that lead to this. Some of it is partisan, to be sure. Some of it has to do with the doctrinal shape of the prevailing law, which encourages categorical claims rather than balancing and thus raises the stakes on each issue. Some of it may have to do with the (real or perceived) increasing reach and potence of civil rights laws and their pervasive reach into various areas of life. And much of it may have to do with the particular public interest litigation groups involved in various cases. I could well see the ADF or the Thomas More Law Center making extravagant and questionable legal claims and finding some plaintiff to sign on to them, while a more "moderate" litigation group might not bring similar suits. Of course we see similar dynamics at work on the other side. Witness, for example, the debate that occurred for some time between "establishment" and independent gay rights groups and litigators about when and how to pursue various claims. Witness, as well, the Solomon Amendment litigation, in which a number of groups--supported by countless law professors!--made claims that the Court unanimously rejected as extreme. (Interestingly, those scholars afterwards more or less consigned the whole case and the arguments they had made about it to the memory hole and never mentioned it again, despite the obvious tensions it presented with arguments they had made in other cases.) We saw a similar willingness of many groups to make arguments in the Hosanna-Tabor case that were again overwhelmingly rejected and criticized by a unanimous Supreme Court. This is just a start; there are many interesting questions about what constitutes an "extreme claims" and why, on either side, such claims might end up becoming more common. For now I'll just say that it's an interesting issue and that Mike might consider these additional possibilities.

Tuesday, March 25, 2014

The Good and Bad of Hobby Lobby

As oral argument gets underway in the contraceptive mandate cases, the blockbuster RFRA case of the decade, here are a couple of quick thoughts about one or two good and bad things about these cases from the decidedly narrow perspective of the law and religion scholarly community.

Bad: What has struck me more than anything else about these cases and the argument around them has been the highly aggressive "framing" of the case, its import, and the issues it raises. I am describing general tendencies as I have seen them, and there are always exceptions. But it seems to me that there has been a tremendous effort to frame the case as categorically "easy" one way or the other. Hobby Lobby might win, or at least get some traction, if the argument were that the exemptions already contained in the ACA were sufficient to make the failure to grant an additional accommodation discriminatory according to a decision like Lukumi Babalu Aye. Or it might lose if the question were whether there is a substantial burden here, particularly given the arguable separation between the corporation and its owners, or whether, even if there is a substantial burden, the government nonetheless has a compelling interest in enforcing the mandate.

These issues have certainly been discussed. But much more of the discussion has been about making categorical arguments. That is certainly true on the defendants' side, where there have been arguments that there is no mandate at all, or that corporations are categorically excluded from invoking RFRA (or, sometimes, that they have no Free Exercise rights, although see my last post), among other attempts to say that the plaintiffs don't lose at the balancing stage but lose early, categorically, and absolutely. I think it is perhaps less clear as a strategy on the plaintiffs' side, but even here I think that for many defenders of the plaintiffs' claims there has been an effort to focus on those aspects of the case that advocates believe the plaintiffs should win categorically, and some elision of the more difficult issues, such as where and how to draw the line (if anywhere) between different kinds of entity claimants or how to effect the balancing if there is a viable claim.

The framing has been still more aggressive, on both sides, at the level of discussion of the stakes of the case. It is a normal strategy of advocates to emphasize slippery slope problems where that will help their case, and to emphasize the law's tendency to impose some common sense and live with slippery slopes where that will help. In this case, both sides have eschewed arguing about how we might draw some lines in this area, and instead have taken an almost apocalyptic view of what the "logic" of the other side's arguments will lead to, as if inexorable, unstoppable logic and nothing more drives the development of cases and lines of precedent. So, on the one side, a victory for Hobby Lobby will lead to the destruction of civil rights laws in general and to the obliteration of the rule of law. And on the other, the logic of those who defend the mandate will lead to the complete undoing of religious freedom.

These framing efforts have been aided and abetted, by serious people on both sides, by fighting so much of the battle in the public sphere and not just in briefs and scholarly articles. On sites like Slate or columns like Linda Greenhouse's, or on corresponding conservative sites, there has been a constant pounding drumbeat on this case, and it's in the nature of those kinds of public debate that the rhetoric is heated and often outstrips the nuances, and ignores the possible saving constructions or reasonable limits that often figure in the actual decision of a case. In this the public commentators and the more serious academic types have, it seems to me, worked hand in glove. I consider that an unfortunate development.

One friend (with whom I respectfully disagree about the case itself, for what it's worth) has suggested to me that this is a product of the seeming success of the heavy ref-working in the NFIB case. That case offered to the legal and legal academic communities a template for the way that contentious legal issues will be played out in the press and elsewhere from now on. That's a fair lesson to take from that experience but, in my view, a deeply unfortunate one, especially for those legal academics who get involved in playing the public framing game. There are high stakes in this case even after the rhetoric is stripped away. But I see the job of legal academics and experts on a particular issue as being to explore and explain the nuances of cases, to show what the stakes are and what problems will be raised by deciding a case on particular principles, but also to explain why it is unlikely that any given case will turn on nothing more than principle and logic and how courts might, however clumsily or incoherently, soften the blows of particular legal principles. Certainly it's not their job to raise the stakes, or indulge the commentariat in its heated rhetoric, for purposes of encouraging a particular result.

Again, this is obviously a particular and personal perspective on the public discussion of the Hobby Lobby case. But I have been very disappointed by and worried about the nature of that discussion, and many academics' role in it.

Good: Until recently, my general view of the law and religion community in the United States, which is a fairly small group, has been that there is too much consensus. We mostly all get along very well (although some of this depends on how you define that scholarly community). We certainly don't all agree! On the whole, though, I thought we tended to agree on so much that at times we didn't fully appreciate or explore some fundamental issues and differences in this field. We took very different views on how to interpret the Religion Clauses, but most of us took religion itself seriously and thought religious liberty a good in itself.

I think that consensus, if I was right to see one there, has substantially dissolved in the past two years, quickly and startingly. It is illustrated in some ways by the letter referenced in this link, signed by several friends whose work I respect, which argues that whatever law and religion scholars and others might have thought about RFRA twenty years ago, we should question state RFRAs altogether today, partly because of their substance and partly because they will be "seen . . . as a shield against enforcement of civil rights laws (current and future)." (emphasis added) It is striking to me, although not necessarily unreasonable, that a group of scholars could now oppose state RFRAs that they might once have supported as much because of their purported "expressive meaning" as because of their substance. More generally, there has been a stark division in the law and religion ranks of late, one driven substantially by the standard conflicts between liberty and equality, and one that has played out in a dramatic and heated fashion with very little apparent middle ground.

As a middle-ground type myself, I am saddened by this development. But it may be that this loss of consensus will be good for law and religion scholars, insofar as it forces us to state our premises more clearly and defend them against more vigorous attack. I do worry that this will tend to make the issues seem more polarized than they actually are, and lead scholars in the field to ignore the messy real-world compromises, and the inevitable if questionable splitting of the difference on matters of principle, that actually take place on the ground in church-state relations and in contests between liberty and equality more generally. But it may lead to more clarity in the field, even if some of that clarity is ultimately directed at defining more precisely the areas in which there are unbridgeable differences between us. Whether any of that will benefit anyone outside the community of law and religion scholars is, of course, a separate question.

What is Missing From This Slate Piece?

On the day before oral arguments in the contraceptive mandate cases, Slate has published a piece on the history of corporate personhood by Naomi Lamoreaux and William Novak. It's interesting and provocative, although I find it odd that the piece basically jumps over the decades of debate and discussion over this issue in England, Germany, and the US between 1870 and 1940 or so. But there's something still odder about the article, and this one I just can't figure. One phrase never mentioned in the piece is "Religious Freedom Restoration Act." Another is "Dictionary Act." And I read the piece quickly, although more than once, and if the words "statute" or "statutory" appear anywhere, they were used so glancingly as to escape my attention. I cannot understand why, on the eve of a major RFRA case, Slate has published a piece that purports to be about the case but never so much as mentions--indeed, if anything carefully omits to mention--the statute or the fact that it is a statutory case. [UPDATE: Link, and gratuitous swipe at Slate for its dismal site design and lack of a search function, added.]

Monday, March 24, 2014

Of Course Justice Ginsburg is Replaceable

I didn't think I would write again on this topic; I thought it was pretty played out. But it appears, somewhat inexplicably, that Erwin Chemerinsky has put it back in the news with a recent op-ed. Garrett Epps and Dahlia Lithwick have filed dissents.

I chose the title for this post, so I'm responsible for it. I don't assume Lithwick chose her headline--"Ruth Bader Ginsburg is Irreplaceable"--so I don't hold her responsible for it. Still, my title is certainly a response to that one. Granted that we are all each one of us special, and that Ginsburg is extraordinarily smart, a leading figure, of great historical importance, and so on. And Lithwick, citing Epps, has a point when she argues that Ginsburg's seniority itself, with the opinion-writing assignment power that goes with it, is a factor in itself apart from her own gifts. Nevertheless, no one is irreplaceable. What is true is that every Justice and every Court necessarily involves unique personal and relational factors. But every Justice can be replaced and, inevitably, will be replaced. The only question is one of timing, and there is nothing unreasonable or insulting about suggesting that, if you care about things like liberal outcomes or care more about the outcomes and their effects on average Americans and less about honoring particular justices as individuals, the balance of factors favors retirement now rather than later. I'm not sure I take that view, but then I'm not a crusader for liberal outcomes on the Court or much given to talking about the effect of the Court's decision on women, minorities, and Americans in general. The people who are inclined to talk in those terms are the ones insisting she should not retire, and that seems irrational to me. Certainly the fact that she more than earned her seat, or that she would be unhappy without it, are hardly important factors for the rest of us to consider. If there is one area where elite Americans of all stripes come together, it is in their membership in the cult of personality. ("I am fascinated by this woman warrior with the body of a sparrow and the heart of a lion," Epps writes. Rich sentence, but a little too Gladiator for my simple democratic tastes.) On this issue I agree with much of what Isaac Chotiner has to say in this New Republic piece. (I must add that the New Republic may actually be outdoing Slate as the worst-designed web site in its sector of the Internet. I feel almost obliged to apologize for linking to it.)

I should add that both Epps and Lithwick make some interesting and valid points. In particular, I find it difficult to figure out why Chemerinsky bothered writing at all. If insisting ten times that someone should retire doesn't work, it's pretty unlikely that things will change the eleventh time. Epps is not wrong to wonder whether the drumbeat isn't "bad manners and bad psychology," although the latter is much more important than the former. (Other points are much more debatable. I won't bother to list them all. But when Lithwick writes that "many" believe John Paul Stevens retired from the bench "too early"--at 90!--I think she is being generous in her use of the word "many.")

I thought the most interesting, and telling, statement was in this passage from Lithwick:

It strikes me as interesting that regular court-watchers tend to be affronted by suggestions that it’s time for Ginsburg to go, just as political scientists are astonished that it isn’t. Maybe Linda Greenhouse, Epps, Bazelon, and others are considered by the Ginsburg’s-got-to-go crowd as simply captive to the same “justices aren’t political” brainwashing as Ginsburg, but maybe they just see Ginsburg through a different lens.

Perhaps that is precisely where the difference lies, between the political scientists and attitudinalists and the more personality-oriented and deferential "court-watchers." I think reason favors the political scientists on this one, and that much is implied by that word "affronted," which suggests that the whole issue is personal rather than strategic and, to be blunt, focuses more on the legal celebrities than on the people whose lives their votes affect. Lithwick writes of "the fears of all of us who have watched the court slowly erode abortion, employee, environmental, and voting rights in the past decade." I happen to share those views, more or less, on a political level, although I consider my feelings on the matter mostly irrelevant to my work as a legal academic, at least when I am doing my job right. But if those are her fears, then it hardly seems flawed to me, as it apparently does to Lithwick, to say that "counting to four, or five, is more important than the justice herself." To the contrary, it obviously is. The attitudinalists may not take everything into account, but on balance they're right.

Tuesday, March 18, 2014

Cartoon Caption Contest Contest

This week's cartoon caption contest in The New Yorker features the following cartoon:

As far as I can tell, what we have here is a nine-member court watching a ping-pong match between two players also wearing judicial robes. I have been puzzling over this one. Is this a routine nine-member court watching two more judges from some other court, a somewhat unusual eleven-member court, a poorly thought out cartoon, or something else? Your suggestions are welcome--to me if not The New Yorker.

Friday, March 07, 2014

Supreme Court Unanimity, T'other Way Around

At CoOp, Gerard Magliocca has an interesting "thought experiment"--I would call it a "question"--about Supreme Court unanimity. He asks: "Can anyone think of a Supreme Court opinion that failed because it was not unanimous? In other words, is there any opinion that was gravely undermined by the fact that one or two Justices dissented?" The discussion is good. (For the record, like at least one other commenter I would have offered Gobitis as an example as well.) But I think the question or its suppositions may get things the wrong way around. Supreme Court opinions don't fail because they're not unanimous; they're not unanimous because they (are about to) fail.

Not always, of course. Really, this question and/or situation is most relevant where the Court is confronted with a politically and socially charged issue that is in the middle of the journey from being uncontested on one side of an issue to being uncontested on the opposite side of the issue. (The best discussion I know of on this is Larry Lessig's earlier con law theory work.) Unanimity at the first end will not rescue an opinion from being overruled when the social and legal consensus has reached uncontestability on the other end. But a lack of unanimity on the Court in the middle period, the stage in which some issue or value is in a period of contestation, is a sympom or indication of that state of contestability. The consensus may resolidify around the earlier view of what is uncontestable. Who knows; maybe the Court's opinion, divided though it may be, will contribute to this resolidification, although I rather doubt it. Other times, the consensus will end up forming at the opposite end of the issue. (And perhaps the Court will help here too, although again I am skeptical.)

We won't know where we stand until there has been some kind of new equilibrium reached. But if and when it is reached, and if the social consensus has formed around a new view of what is uncontestable, then we can look back to that divided (and later reversed or dead-ened) opinion as an indication that the Court took on the issue, not so much too early (although we might conclude that it did), but too early to be in a position to settle the issue, or appear to settle it, with any finality. Until that social consensus has arrived, courts will engage in lots of issue avoidance and other exercises of the passive virtues. On some occasions, they will nevertheless reach a substantive decision on one side of the issue or the other. But as long as that issue is still socially contested, there is little reason to think any court decision will be the final word on the subject.

The comments to Gerard's post offer some possible examples and illustrations. I'm not sure all of them work with the little pattern I've offered above. Some certainly do. Others indicate, in line with Michael Klarman's work, that sometimes the state of contestability on an issue can be in one place for the Court and other national elites and elsewhere with respect to public opinion. Brown's unanimity made an important statement about the state of contestation around issues of segregation on the Court and in similar circles, but did not necessarily indicate the same stage of uncontestability in the South. Bowers, Lawrence, the SSM cases, and the contraceptive mandate cases can all be viewed in light of the fact that we are in a period of active contestation on issues of gay rights. And so on.

Nothing terribly novel here. Just food for thought, picking up on the discussion in the comments to Gerard's post.

Friday, February 28, 2014

New York Times v. Sullivan at 50

As the faculty advisor to the Alabama Law Review, I'm delighted to note that the Law Review today is hosting a symposium on the 50th anniversary of New York Times v. Sullivan. The editors did a wonderful job putting together a great list of speakers. We are welcoming Judge U.W. Clemon (ret.), who not incidentally was the first African-American federal district court judge in the state; Judge Robert Sack of the Second Circuit; and Professors Sonja West (Georgia), Mark Tushnet (Harvard), RonNell Andersen Jones (BYU), David Anderson (Texas), and Christopher Schmidt (Chicago-Kent). I'm especially happy that the Law Review, in selecting these speakers, has recognized that the Sullivan decision is more than one thing: it's a speech case, to be sure, and an important press case, and an important case in comparative constitutional law (sometimes accepted, sometimes rejected), but it is also fundamentally a civil rights case, an aspect of the decision that is sometimes omitted. I'm glad in particular that students in and from Alabama, where the case began, have made an effort both to commemmorate this important decision and to spotlight its crucial civil rights aspects. I'm looking forward to a great day and want to praise the students who put this together. If you happen to be down the road enjoying a late breakfast at Rama Jama's or an early lunch at Dreamland, y'all come.

This being a blog, I will also link to a recent piece of mine on institutional actors in New York Times v. Sullivan, which doubtless is flawed but attempts to (1) think about the press, the civil rights movement, and the courts as institutional actors in the case; (2) ask questions about the long-term status of Sullivan as a canonical constitutional case; and (3) offer a puckish point in a footnote about Professor McConnell's excellent recent discussion of Citizens United as a Press Clause case. That point links my interest in law and religion to my interest in freedom of the press, and I believe Prof. West's paper today will take up a similar topic. Given similar concerns about identifying "religion," "churches," and "the press," it may be that church-state scholars can and will have something to add to thinking and writing about the Press Clause.

Wednesday, February 26, 2014

Should A Colleague Review a Colleague's Book (or a Journal Publish That Review)?

I appreciate that asking questions (especially in the titles of blog posts) generally is taken as signaling that the author thinks he knows the answer to the question perfectly well. In this case, to be quite clear, I'm actually asking a question, not making an accusation.

So: Should a professor publicly review a book by a departmental or, in the case of law schools, faculty colleague? Or is the potential or perceived conflict of interest substantial enough to make this a bad academic practice? Of course, I ask for a reason. The latest issue of the Texas Law Review, which I am glad still publishes book reviews at all, features a review that, unless I have my facts wrong, involves one colleague reviewing another's book. The review is quite laudatory; other reviews have been as well, so doubtless the plaudits are deserved. But I admit that seeing one member of a law school reviewing the work of another, especially in a prominent venue, did give me pause.

It's not clear to me that there are any well-known rules about this, at least in the legal academy. I can think offhand of other examples of this conduct, certainly; a few years ago, for instance, two little-known Yale Law School professors engaged in a dialogue about each other's books in the Yale Law Journal. I would admittedly consider the ethical norms and practices of other academic departments a better guide than the practices of law schools, let alone law reviews themselves--although I was surprised that the Texas Law Review didn't simply seek a review by a non-colleague. But I don't know what those norms are, beyond a quick glance at this interesting but non-authoritative piece. Perhaps some of our readers, especially those in the academy but outside law schools, can offer some guidance on what best practices elsewhere in the university are with respect to such matters.

Friday, January 31, 2014

The Contraceptive Mandate Cases: The Looong View

For those interested in the issues or context of the contraceptive mandate cases, may I recommend the new volume of the Journal of Contemporary Legal Issues, a symposium-centered journal published by the University of San Diego School of Law. The issue is titled "The Freedom of the Church in the Modern Era," and its contributors include critics and supporters (sometimes both in the same article) of the general concept of freedom of the church. The articles cover a range of periods and issues, including many discussions of the mandate cases and/or directly relevant legal questions in those cases. Alas, it's not available in PDF form or some other easily accessible format, but the issue is up on Westlaw.

Tuesday, January 28, 2014

Is Criticizing "Judicial Engagement" a "Straw Man?"

The Volokh Conspiracy's move to the Washington Post website is a big deal, and I wish it (them?) luck in the new venture. It seems harder to sign up to offer comments, and in some strange way I miss the comment traffic of old; I also hope the page will be revamped to offer more color. That said, the blog gets more traffic on an off-day than we here do in a year, and its bloggers are prolific, unlike some people I could mention. The move is impressive.

One thing I noticed today is that the VCWP blog posts have captions or sub-heds. I noticed it because a post today by Randy Barnett, titled "'Judicial engagement' is not the same as "'judicial activism,'" has the sub-hed "Critics of George Will and Clark Neily's defense of 'judicial engagement' are attacking a straw man." That phrase doesn't appear in the text itself. That's fine, of course. But I can't quite tell if the post itself is arguing this proposition. If it does, it's wrong.

Part of the problem is that the "critics" referred to in the sub-hed turn out to be one person, Ed Whelan. To paraphrase, Whelan objects to Neily's effort to popularize the phrase "judicial engagement" because he is invested in the idea of objecting to judicial "activism." In this, he is sort of like the New Deal-era Justices who later objected to decisions or reasoning in rights cases that appeared to raise the specter of the Lochner era. I don't know whether Barnett wrote the sub-hed, or whether he had other critics in mind, or what those critics said. But I will take the very minor liberty of treating the sub-hed as putting Barnett's argument more or less as a facial challenge, so to speak. As such, it cannot be right. Clearly there are non-straw-man reason to object to the phrase "judicial engagement" and the effort to popularize it--reasons that apply equally to the phrase "judicial activism" and efforts to popularize it.

"'Judicial activism' was devised to be pejorative," Barnett writes, "but it has little content." (I find the "but" interesting there. Not "and it has little content?") He then goes on to argue that "what 'activism' really means is improperly invalidating a law that is not really unconstitutional." (The first emphasis is mine.) This is to be contrasted with "judicial engagement," which Neily and Barnett supply with a definition. He adds, "Instead of 'judicial conservatism,' which admonishes judges to put their thumbs on the scales to uphold laws, we favor 'constitutional conservatism' in which judges are restrained to follow the Constitution, whether this leads to upholding or invalidating legislation."

Is there a difference between "judicial activism" and "judicial engagement," or between "judicial conservatism" and "constitutional conservatism?" Sure. By definition there is--and I mean that phrase literally. Of course, there would be no difference if you defined both phrases to mean the same thing. And there would be a difference if you called one thing "turkey on rye" and the other "Grabthar's hammer." What it "really means" would depend on the content, not the label. Discussing the definitions is useful, kind of; discussing the phrases is not. Action X is good or bad, right or wrong, regardless of whether you call it, say, the "nuclear option" or the "constitutional option" or "the Corbomite Maneuver." Barnett (or Neily) solves the "little content" problem with "judicial activism" by supplying content. If he does not solve it there, then he sure as hell does not solve it for "judicial engagement." It certainly cannot be right in any terribly useful sense to write: "'Judicial engagement' is both a less pejorative and more accurate label for how a constitutionally conservative judge should act." It is not terribly useful to use one placeholder to define and approve another placeholder; and any pejorative qualities will come from factors entirely outside the "real" meaning of any of these phrases.

So, depending on who the "critics" are and what they have to say, it is certainly no straw man to disdain the use of the phrase "judicial engagement," or "constitutional conservatism," any more than it is to disdain the use of the phrase "judicial activism" or "judicial conservatism." All you have to do is prefer things to words, or grappling with problems and ideas to doing public relations.

I suppose I should add a caveat to my post. If you care about public relations, then you may indeed care about these issues. If you are engaged in advocacy, you may care about them. If you want to be a moral entrepreneur, you may care about them. But certainly caring about them is not an academic or truth-seeking function as such, as I understand those roles. (There is no "truth" about the "real" meaning of phrases like "judicial activism" or "judicial engagement.") An academic might be interested in analyzing those phrases, say as a matter of analyzing what moves or manipulates or crystallizes public opinion, or how phrases take on currency or lose it, or things of that sort; but an academic would certainly not, qua academic, be interested in pushing or popularizing a phrase for purposes that could best be characterized as propaganda. Richard Posner is fond of observing that in the intellectual realm, academics are less likely these days to be moral entrepreneurs. But I don't think he's making a value statement when he says that, and it may be a good thing on the whole that academics are less likely or less qualified to serve as moral entrepreneurs, or that the increase in the stringency and specificity of academic standards may hamper them from doing so.

I think people are entitled to argue about whether legal academics are closer to the advocacy side of things than other academics (at least ideally; obviously lots of academics in other fields are propagandists). They may also argue about whether academics can engage in propaganda (or norm entrepreneurship, or whatever you want to call it), or at least whether they should, and if so subject to what limits. Obviously many individuals engage in academic work and propaganda or political activism. I'm speaking only to the academic side. From that side only, it seems clear to me that there are valid reasons to question the intellectual value of the phrase "judicial engagement," or of the very enterprise of coming up with and pushing such phrases.

Monday, January 27, 2014

RIP Randy Bezanson

Brian Leiter's Law School Reports brings news of the passing of Randall Bezanson, a longtime professor at the University of Iowa College of Law; I'm writing this in transit and don't have the link, but Brian's item provides a link to the statement from the dean at Iowa. I just wanted to add a quick word of tribute. My first, temporary job was as a visitor teaching constitutional law at Iowa. It was a great experience for many reasons, but Randy's presence was high among them. As a colleague he was very helpful in giving me tips and materials for my first time teaching the class. As a colleague he was generous in his time reading a draft paper on our mutual love, the First Amendment, and more than happy to recommend major surgery on the piece. And, as the Dean's message notes, he was always a fun, provocative presence at the lunch table, ready to start things off with a topic or question of the day. I still draw heavily on his writings, especially those on freedom of the press; my latest piece cites him repeatedly and I very much enjoyed his recent print debate with Eugene Volokh on freedom of the press. He was and is an influence, and a friend. He suffered through a long and difficult illness, and doubtless things looked different from close up; but from far away, it seemed as if he managed to do so with his vitality much undimmed. I will miss him.

Sunday, January 12, 2014

Corbin on Abortion Distortions (and What's Missing)

As I said in my last post, it's easier to meet your commitments to blog more if you go the aggregation route! To that end, and because I found it very interesting, I note that my friend Caroline Corbin, who is an excellent and prolific scholar in the law and religion and compelled speech areas, has a new paper up on SSRN. It's called Abortion Distortions; as they say in Shakespeare in Love, "Good title!" Here's the abstract:

Two types of distortions often arise in abortion jurisprudence. The first is distortion of scientific fact. Too often abortion opponents distort medical facts and courts accept those distortions as true. Take, for example, the claim that abortion makes women depressed and suicidal. In fact, no reputable study supports any such causal link. Equally without scientific foundation is the claim that morning after pills like Plan B act as abortifacients. They do not.

The second kind of distortion that occurs in abortion jurisprudence is that the normal doctrine does not apply. Thus, despite the fact that compelling someone to articulate the government’s ideology is anathema in free speech jurisprudence, courts have upheld mandatory abortion counseling laws that force doctors to serve as mouthpieces for the state’s viewpoint. Similarly, despite the fact that for-profit corporations have never been held to have religious rights, several courts have stayed application of the new contraception mandate on the grounds that it might violate the corporation’s "conscience." This abortion exceptionalism is problematic for women and for First Amendment jurisprudence.

I enjoyed this paper. I agree with her point in general, and at least provisionally with her points about depression/suicidal claims and counselling laws; I am still(!) reaching my own conclusions about the mandate cases, although I don't think the corporate Free Exercise claim is as novel or impossible as some critics suggest, whatever limits ought to apply to it, but in any event I take no position on her argument in this section. It's a good, and short, read.

I'm very surprised by one element of the paper, however. This is not the first time that it has been argued that abortion tends to have distorting effects on judicial work and particularly First Amendment cases. It was a rather prominent feature of Justice Scalia's dissent in one of the abortion protest injunction cases, Madsen v. Women's Health Center, Inc., 512 U.S. 753, 785 (1994) (Scalia, J., dissenting), in which he wrote, "Today the ad hoc nullification machine [of abortion] claims its latest, greatest, and most surprising victim: the First Amendment." Similar claims have long been made that abortion works a distorting effect on First Amendment doctrine in another abortion protest decision by the Court, Hill v. Colorado, whose soundness will be tested by the Court this week when it hears McCullen v. Coakley. Forgive me if I am mistaken, and by all means correct me, but my quick read and search of Corbin's draft found no references to any of those cases or to the literature discussing them.

Of course Corbin may disagree with those criticisms, and of course the specific doctrinal issues she addresses are different, but I am surprised not to see a reference to them. This is especially true because the idea of some hot-button or significant factual/moral issue shaping, influencing, or distorting constitutional doctrine is hardly limited to abortion. Many splendid articles, including this one by Burt Neuborne, have been written about the "gravitational pull" of race on constitutional doctrine in a variety of areas. My recent (rough draft) article on New York Times v. Sullivan talks about the influence of race and the civil rights movement on that decision, and briefly references some of the literature alleging that abortion has a "gravitational pull" on the law. It seems to me that although a focus on particular doctrinal questions is understandable, there is also much value in focusing on, or at least fitting in and thinking about, how and why such phenomena occur in general and with what consequences; whether it is unavoidable and how; and just how bad (or good) these "distortions" are as a general matter. (There is such a thing, in my view, as overvaluing doctrinal coherence, or accepting its inevitable limits even if it is generally a good thing, or demanding more coherence from the Court than it can reasonably provide given the kinds of issues it deals with and their political and emotional valence.) I like the paper and recommend it to readers, and there is something to be said for modesty in scope. But I still found myself regretting these omissions. I encourage you to read this paper--alongside the other literature on this issue.

A Couple of Thoughts on Blogging

A belated happy new year, although I have posted one thing since January began. A quick apology for blogging so little in the past year and letting my colleagues, both guests and permanent members, do so much of the work. Some of the paucity has been due to personal and professional commitments of various kinds. In general, my not blogging is a net gain for both writers and readers, so an apology is probably unnecessary. But since I still occasionally get kind words from people I meet who say they effectively got to know me through the blog, I thought a word or two were due.

Anyone who has blogged for a long time knows it can be difficult to keep it up. Some of it has to do with the usual peaks and valleys of a person's life, including his writing life. A good deal of it has to do with the heated nature of many discussions and comment threads (including from professors), especially around legal education. I think there are good reasons for that, although it does not excuse absolutely any kind of rhetoric in my view. But heated discussions on any topic are more time-consuming to monitor, which I think one must, and can reach a point of exhaustion (both as to the discussion and as to the individual blogger involved) fairly quickly.

Much of it has to do with a simple desire not to be unduly repetitive. Some people manage to be both prolific and novel on blogs. Others maintain a high quantity of posts by sticking to the aggregation model ("Here's an interesting piece, news story, etc."). I tend to want to read something fully and be ready to comment on it before I link to it, and aside from being too busy to do so in a timely fashion sometimes, by the time I might be ready to post something I think the discussion has moved on and am much less willing to post at that point. And there are certainly many bloggers who don't seem to mind riding the same hobby-horse again and again: who think an issue or position is endlessly fascinating to themselves or others and worth repeating many times, or who get a charge out of high moral dudgeon in general or attacking some real or imagined Internet adversary in particular. And our "service" threads on hiring and publishing are very popular, although I'm not always crazy about them. I don't fall into those categories by way of inclination, and I increasingly think that if you don't have something that's especially worth saying to a general audience, you should remain silent. That's not very consistent with the general model of blogging, unfortunately!

Although this point is sooo 2008, Facebook is another reason. When we started blogging, some of us especially dilettantish or thin-line-between-professional-life-and-everything-else sorts thought we would mix up posts on law and law teaching with posts about how great Hem is, or why Gavin Harrison is such a great drummer, or why Broadchurch is such a funny show, or what have you. But Facebook seems to fulfill a lot of those needs, without either requiring one to blog on such matters for a slightly more professional audience or to flyspeck the post for errors of fact or tone deafness. Professors moaning about how unpleasant grading exams is, for example, is an extremely self-indulgent enterprise, even if it's a natural personal reaction. When law blogs started, that kind of thing was more common in the blogosphere. It has since rightly died down a great deal. (I should say that I got an earful from my students this week about how long professors take to grade exams, how foolishly long the grading deadlines are at many schools, how much it interferes with choosing and dropping courses, decisions to withdraw while tuition refunds are still at full-rate, and how the students themselves must and do meet their own deadlines. They were quite right and I am frequently quite guilty.) On Facebook, however, it's more possible to do that sort of thing (although I don't, I think) without anyone assuming you're engaging in anything other than a first-person description of your own life, or without airing a totally minor gripe to an audience of understandably impatient students. And you can post pictures of cats, and your fabulous meals, and hilarious memes about offensive coordinators, and news of your above-average offspring! Or curse a blue streak. Or joke about shooting your children. Given the long list of lawprof friends that one amasses on Facebook, it may be that this is equally professionally damaging in the long run. (I have only shot my children in laser tag, I should clarify.) But it is marginally safer and more intimate. So I feel free to post half-baked and/or cultural stuff there, or ride the occasional hobby-horse, while saving the most well-worked-out, non-repetitive stuff for this blog. Which means blogging a lot less, as I said. I probably ought to cut down on or cease Facebooking too. But it can be a nice outlet and is very useful for purposes of local political organizing (which Tuscaloosa always needs) and maintaining a sense of local and professional community. Plus, cats and Lane Kiffin.

Anyway, I hope to blog more this year, and I suspect that my work on a book this year (on social class and the American legal academy--write me if you're interested or have some input or insights or experiences) will give me more occasions and energy to do so, but I would also be perfectly happy with extended silences. I suppose I could add that if you miss my brand of nonsense you're welcome to send me a request at Facebook, although I assume those of you with lives have other things to do and those of you without them have already done so.

Monday, January 06, 2014

Happy 50th Anniversary of the Oral Argument in New York Times v. Sullivan

Today is the fiftieth anniversary of the oral arguments in one of the landmark cases in the history of the Warren Court and the jurisprudence of the First Amendment: New York Times v. Sullivan. An Oyez project page with links to, among other things, the oral argument itself is available here.

I usually sit on my draft papers a bit before posting them to SSRN, but given the anniversary I thought it would be a good day to post a newly completed (rough!) draft paper of mine on the subject, despite its obvious flaws. The article is titled Institutional Actors in New York Times v. Sullivan. It was written for a symposium at the University of Georgia School of Law marking the case's fiftieth anniversary. (Alas, I was unable to attend in person; I'm sure I missed a great conference, not to mention a hell of a college town.) The Alabama Law Review will be hosting its own fiftieth anniversary symposium later this year; it's not surprising to me that two states in the Deep South, which figured so prominently in the outcome of the case, have felt duty-bound to revisit it. Here's the abstract:

This Article was written for a symposium held at the University of Georgia School of Law marking the fiftieth anniversary of New York Times v. Sullivan. It has two primary purposes.

First, it examines this landmark First Amendment decision through the lens of the institutional actors that were prominent in the case. Most academic treatments of Sullivan, and of the First Amendment generally, focus substantially on the state and/or public officials. This Article turns its focus elsewhere, to three other key institutions in the case: the press, social movements (in this case, the civil rights movement), and courts--both the state courts and the Supreme Court itself. That institutional focus helps revive certain aspects of the case that are easily neglected over time; helps make clear why the Supreme Court was willing to act so aggressively in this case, both in constitutionalizing defamation law and in insisting on independent appellate review of the facts; and reminds us that the decision was not just about mistrust of government, but was also about preserving the vital role that non-state actors such as the New York Times or the civil rights movement play in monitoring and checking government and contributing to public discourse and social change.

Second, it offers some exploratory thoughts on why, as I think is true, New York Times v. Sullivan has lost some of its luster and canonical status in the intervening years. Sullivan is still obviously a hugely important case, and it has always been subject to criticism. Still, it was once highly and widely celebrated. Now, even among those who are not especially critical of the decision, it is more likely to be met with a shrug than with praise. It is not an object of ongoing political contestation like other landmark cases, such as Brown v. Board of Education; it is simply there. I suggest that Sullivan has undergone a sort of bifurcation that has diminished its canonical status. On the one hand, its broad pronouncements have largely been assimilated into First Amendment doctrine, so that citations to the case are almost more decorative than substantial. On the other, its specific pronouncements concerning defamation law have been submerged in the complex details of defamation law itself, which has returned to the preserve of specialists. To these factors, we can add two others: the direction of First Amendment law itself, with its profusion of fairly schematic anti-discrimination rules; and, relatedly, the general focus in First Amendment doctrine on the government as the central actor, and the relative lack of interest in the specific speakers, institutional or individual, that come before the courts.

Taken together, these factors have made New York Times v. Sullivan a case that continues to be cited for general principles, but that fails to capture the attention and imagination of either constitutional law experts or the public as it once did. A focus on the press, the civil rights movement, and the courts as institutional actors in Sullivan helps remind us of the high-stakes nature of the case at the time it was decided, and the past and present importance of certain institutional actors in our social structure.

Wednesday, November 27, 2013

Two Cases

It's an oversimplication, to be sure. But the title of this post seems to me to be the answer to the question, "How many cases does it take to turn a fan of non-formalist balancing into an advocate of formalist categoricalism?" Those two cases are the contraceptive mandate cases, on which the Court has just granted cert.

The balancing-versus-categoricalism debate in constitutional rights adjudication, which often tracks the non-formalist-versus-formalist divide, is a longstanding debate. (See here for some background.) American constitutional doctrine has gone back and forth between the two. In more modern constitutional legal systems, however, the emphasis tends to be on balancing. It is aided in part by the different textual structure of those constitutions and their rights provisions, which contain both stand-alone rights guarantees (ie., "Everyone has the following fundamental freedoms: . . . freedom of conscience and religion. . .") and explicit balancing clauses (ie., "[The Constitution] guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."). It is also probably undergirded by faith in judges, by the relative homogeneity of those judges and their political views, and by the force of some charismatic judges along the way, notably Aharon Barak (who did not even have the benefit of that kind of textual clarity, or any actual constitutional text at all, to work with). Under this approach, the general legal tendency has been to define the right broadly, and do most of the work at the balancing stage. (Advocates of this approach also frequently favor a similarly broad approach to potential preliminary categorical barriers such as standing.)

Generalizations are just that and should be taken with a grain of salt. But I think it's still broadly true to observe that many legal liberals favor the modern style of constitutional adjudication, believe in judicial balancing, and are less inclined to support categoricalism or formalism as a means of constraining rights claims.

Until the contraceptive mandate cases (and Citizens United), that is. It would be possible to decide such cases by taking a broad approach to the categorical questions and finding that such a right exists, even for corporations, while holding against the corporate plaintiff on balancing grounds. But many of the initial responses to these cases seem to be more formalist and categorical in nature, rejecting a Barakian or Breyereseque balancing in favor of a more formalist up-front exclusion on who (or what) can claim a constitutional right to freedom of religion (or expression, in something like the Elane Photography case) at all. A lot of people suddenly seem fonder of formal categorical exclusions, and more leery of judicial balancing, than they used to!

I admit to some ambivalence here. Skepticism of the judicial capacity to balance rights against state interests is a good thing. Skepticism of Barak's passion for proportionality is a very good thing. And I am apparently not opposed to categorical approaches! But I think balancing emphatically has a role to play in rights adjudication, and I think these cases could be sensibly decided at the balancing level rather than engaging in categorical exclusions at the preliminary stage of the rights claim. For what it's worth, I tend to think that many entity plaintiffs challenging the mandate should lose at the burden or state interest stage of the analysis. I would rather have the decision occur at that stage than by denying the possibility of an entity claim altogether. But I'm still thinking about those issues. In the meantime, I'm interested in what the mandate cases and the reaction to them say at a higher level about fair-weather allegiance to balancing versus categoricalism or non-formalism versus formalism.

Two additional points. First, in response to a comment on FB on this issue, I'm thinking mostly about the Free Exercise (or, under RFRA, Free Exercisish) aspects of these cases, not the Establishment Clause aspects. The Establishment Clause presents its own questions, and it is not always as easy to situate thinking about the Establishment Clause on one side or the other of the categoricalism/balancing divide, in part because of underlying uncertainty about whether the Establishment Clause itself is a rights provision or a structural provision.

Second, there is also a similar reversal or tension on the formalist/judicial conservative side, although again this is a very rough cut. For reasons probably having to do with general priors than with a particular unified legal theory, many people who might be characterized as judicial or political conservatives, who are fonder of formalism and less fond of balancing, are also supporters of a robust regime of religious liberty. Given their fondness for formalism and skepticism about judicial balancing and judicially ordered exemptions, many of them have reconciled themselves over the last 20 years to the Supreme Court's formalist decision in Employment Division v. Smith. Yet they object to the broad application of civil and human rights statutes and provisions like the contraceptive mandate to religious entities. There may be some ways to address this without sacrificing formalism. One is to exploit the requirement that a law be genuinely neutral and generally applicable. Another, of recent vintage, has been to emphasize the quasi-jurisdictional idea that churches themselves are entitled to a broad scope of internal freedom. That worked in Hosanna-Tabor. But how broad should that categorical approach be? Should it really work when applied to for-profit corporations, for instance? (And why, incidentally, once we've gone down that road, shouldn't the formalists re-examine their general rejection of categorical Press Clause rights?) Doesn't it require courts to undertake the kinds of inquiries about "who is a church" that they think courts aren't generally qualified to engage in? Finally, I suppose a third possibility for people in this camp is to take a broad view that everyone, including all sorts of claimants, is ostensibly entitled to bring freedom of religion claims, while dealing with the mess at the balancing stage. Which perhaps puts them closer to the Barak/balancing camp than they would normally want to be; hence the tension on the other side of the debate.

Comments welcome, of course; as I said, this is a pretty rough cut and I don't think it's the whole story, although I do think looking at things this way reveals some pretty interesting methodological tensions. And see also this related article by Perry Dane.

Friday, November 22, 2013

Interesting Somin Post on Federalism and Rights

An interesting post--I think it's by Ilya Somin [see update below], although it appears at Concurring Opinions, which would be unusual for him--on the Elane Photography case. Its basic point, to put it rather briefly and bluntly, is "New Mexico: Love it or leave it." As he writes:

If Huguenin wants to turn a profit in the economic atmosphere the State of New Mexico provides her, the citizens of that state have declared that there are certain business decisions she may not make. The good news for those who want to discriminate nonetheless is that relatively few jurisdictions in this country have public accommodations laws that forbid sexual orientation discrimination. Right next door to New Mexico, Arizona has such laws only at the local level in Tucson and Phoenix. There is also a paucity of public accommodations protections in neighboring Texas and Oklahoma. It should thus be relatively easy for Huguenin to find her way to a place where she is truly free to marry her business practices with her religious convictions.

I appreciate the strong argument that our interpretation of constitutional rights should be influenced by conditions of federalism. For reasons that have been well stated elsewhere, as in this article, I don't think "voting with your feet" is an adequate substitute for or response to the side-constraints on law provided by individual constitutional rights. But I'm grateful for his willingness to make this argument.

[Update: I am told the author is actually Richard Storrow, although given the author's strong emphasis on voting with your feet as a remedy in rights cases, I still think my confusion was understandable.]

Thursday, October 24, 2013

Wheat, Chaff, and Law Reviews

I really thought I could stay out of this Liptak-law-review discussion. I agree that Liptak's piece, with due respect to him, was not great. But there is always a risk that criticizing a piece leads to an over-defense of the current system of law reviews and the scholarship that appears in them. Preserving the baby doesn't mean we need to keep the bathwater, necessarily. There is a lot of bathwater in law reviews!

In any event, what moves me finally to write is Dan Solove's post in (partial?) defense of law reviews, and especially his responses to commenters. Dan writes in one comment:

The issue is . . . whether the peer review system is worth the time and effort to implement in these days where there isn’t a scarcity of publishing opportunities.

Quite frankly, I’d rather spend my time reading pieces I know are good and working on my own scholarship than doing a lot of peer reviewing. I can tell rather quickly if a piece is going to be any good, and I can quickly move on if it isn’t. And if I don’t know whether a piece outside my field is any good, I can ask professors in that field whom I trust or see what pieces they recommend on Twitter and in blogs, etc. . . . Life is short, and I’d rather not spend my time this way, and I bet many law professors think the same.

A commenter writes to chide him for this: "Peer review in other fields is considered one of the things that responsible academics do. Annoying and boring perhaps, but it helps separate the wheat from the chaff, and multiplied over all the people who have to do their own personal peer review every time they are looking for an article saves net time." Dan responds:

I think you’re missing my point. Peer review would matter if there were a scarcity of publishing opportunities. But there isn’t. So why bother putting so much time into front end review when there isn’t scarcity anymore and anyone can publish? Why not devote more time to other things?

The argument that responsible academics just do peer review doesn’t really answer my point about why pre-publication evaluation is important and why post-publication evaluation won’t be sufficient.

People can readily find the wheat from the chaff by looking at commentary on already-published works. Basically, being published just doesn’t mean much anymore, and I being published never was a particularly precise proxy for being good. It has been a proxy better than random, for sure, but not a precise one, and not one I’d rely heavily upon — even with peer review.

I think that most debates about peer review seem to be stuck in a bygone mentality where publishing opportunities were scarce. We’re living in a very different world now.

I agree with Dan that chaff is inevitable in scholarship and sorting is always necessary. I also agree that the lack of scarcity and the availability of venues like SSRN raises interesting questions. But I disagree with much else here. In particular, let me offer two comments.

First, I don't think the inevitability of chaff tells us enough about whether the current system is problematic or not. In particular, we might consider whether the current system overproduces chaff, and what systemic consequences that might have. I can think of several possible negative consequences. It raises the search costs, because of the time and effort involved in finding the few needles in an ever larger haystack. It's true that experts like Dan can do this efficiently, but not costlessly. Meanwhile, the law is full of generalists, especially in the judicial ranks, and the search costs for them have grown. It also increases the potential error costs: the possibility that some reader will give undue credence to a poor or erroneous piece. Even given that there is always lots of chaff and some wheat, we might still have reasons to want to avoid having too much junk out there.

More interestingly, perhaps, the abundance of poorly policed publication opportunities may create or support bad incentives for law professors and the legal academy. I don't disdain theoretical or interdisciplinary work, but neither do I disdain straight doctrinal work. The plethora of publishing opportunities and the poor pre-publication gatekeeping may encourage more professors to do more "ambitious" and less doctrinal work, to focus on articles over treatises or PLI pieces or other doctrinal work. Moreover, because publication is treated as a core part of the job of full-time faculty, and standards of pre-publication judgment (not to mention tenure and promotion standards) are weak, it may lead to or at least enable not just an overproduction of non-doctrinal work, but an oversupply of full-time law faculty altogether, as opposed to adjuncts and other teachers with a stronger ongoing connection to particular practice areas. Perhaps if there were stronger pre-publication standards and a concomitant decrease in the number of seriously regarded publication slots, we would have a smaller, stronger professorial corps, or a more efficient distribution of resources in law schools, both between doctrinal and non-doctrinal professors and between full-time and part-time faculty.

In short, lack of scarcity is not everything. There are still independent reasons to want to separate the wheat from the chaff earlier in the process, and to encourage more faculty to work on more narrow and doctrinal pieces rather than take a flyer on more high-flying pieces (on the view that the piece will surely be published somewhere, and might just be published somewhere great).

I also think Dan shrugs off the point about peer review and related academic work too casually. For the reasons I've offered (and other reasons too, I'm sure)--e.g., the risk of overproduction of chaff and the associated risks of general readers overrelying on poor work--I think there are reasons "why pre-publication evaluation is important and why post-publication evaluation won’t be sufficient." And, both for practical reasons and more abstract, virtue-centered or vocational reasons, I think the commenter is right that services like peer review are a fundamental part of the academic's responsibilities and should not be dismissed as unnecessarily burdensome. Part of the academic's job is to make sure not just that her own work is sound, but that the general body of scholarship in her discipline is sound: that the well is not poisoned or diluted, that some level of minimal disciplinary standards are maintained and enforced across the board, and so on. She should also not want her colleagues, especially junior ones, to spend an undue amount of time on work that need not or ought not be done at all; she shouldn't want her junior colleagues to overproduce poor work, secure in the knowledge that someone will take it, when that scholar could be encouraged at an earlier stage to abandon a poor or unnecessary project and use her time and talents more usefully. I should add that I see no reason to doubt that Dan takes on his full share of these burdens, no matter how wearisome he may find it. But whether it's wearisome or not, it strikes me as serving practical purposes, as ultimately doing a kindness both to one's colleagues and to the overall body of scholarship, and as a meaningful part of the package of rights and responsibilities that make up the scholar's vocation.

Friday, October 11, 2013

More "Obscurity"

Thanks to Colin for telling us about his interesting piece on "The Virtue of Obscurity" in Supreme Court opinion writing, with specific reference to (surprise!) Justice Kennedy. We're glad to have him here. I appreciate that it's a short piece, but let me make a couple of critical or questioning remarks about the piece, if only because I would appreciate hearing more of his views on the subject, here or in longer work.

The questions are related and I'm not sure it matters which comes first. But as a preliminary matter, and without wanting to be too cute about it, I would appreciate getting a clearer definition of what Colin means by "obscure" or "obscurity." He seems to define it mostly as by negative implication, as the absence of qualities such as clarity and specificity. As a matter of everyday language, or even casual professional talk about judicial opinions, I have no problem understanding the term, and absolutely no problem locating it somewhere in the vicinity of Justice Kennedy. In the case of an article that gets some charge out of the counter-intuitive move of praising obscurity, though, I would like to know the author's own definition of the term, and maybe something on how we can tell deliberate obscurity from something else.

Second, and this admittedly is what struck me first, I'm surprised not to see reference to Cass Sunstein's work on judicial minimalism. Again, it's a short piece, and I appreciate that and am glad Colin wrote it, and discussed it here on Prawfs. But I think Sunstein's work on minimalism would be very useful to this project--indeed, his primary work on minimalism focuses at length on many of the same cases--and might add some clarity to the definitional question I asked above. Although in his writing on minimalism Sunstein generally favors opinions that are both narrow and shallow, he points out that these categories are capable of various combinations, and that we can (favorably) imagine some opinions that are "shallow and wide," or "deep and narrow." Others have written even more favorably about those possible categories. Donald Dripps has argued that in criminal procedure, broad but shallow opinions are often highly desirable. In a piece written back when my hair was a different color, I argued in favor of the uses of what Sunstein would, I think, call deep but narrow opinions. Both of these kinds of cases, it seems to me, can be thought of as involving different kinds of judicial "obscurity" in service of different kinds of needs. In short, I think it's probably necessary to say more about the different forms that judicial "obscurity" can take, and the occasions for which they are more or less well-suited.

I suppose there's a third point that relates to the questions I asked at the end of my first point. Sometimes obscurity is necessary, but not for the public. Sometimes it's necessary to cobble together a majority, or a large majority in those cases in which something more than a plurality or bare majority is thought to be important. So before praising Justice Kennedy (or anyone else) for obscurity, we would have to consider whether that obscurity was part of a longer-term project or a concern for the public, or whether it was just a means of smoothing over differences on the Court itself.

Again, notwithstanding or perhaps because of these questions, thanks to Colin for posting on his article.

Tuesday, October 08, 2013

Skipping the Post is Not a Big Deal

A couple of words, if I may, on the widespread, if totally ephemeral, criticism of Justice Scalia, occasioned by his statement in this week's New York Magazine interview* that he only takes the Wall Street Journal and the Washington Times, and gave up the Washington Post because it had become too "shrilly liberal." A fairly standard example, with one important exception, can be found here: http://takingnote.blogs.nytimes.com/2013/10/07/scalias-echo-chamber/?_r=0. Those words are: Big deal. Now let me expand slightly.

1) What should really upset us is not that Scalia gave up the Post, but that he reads the Washington Times, which is a transparently lousy newspaper.

2) He already reads the Journal, which, editorial pages aside, is neither especially conservative nor especially different in terms of the background or perspective of its reporters or editors. Perhaps the Justices would do us all a favor by picking a paper at random from the non-coastal United States and reading that every day.

3) The Post has gotten pretty thin in the past few (say, 15) years.

4) Of course the Post is liberal! I doubt shrill is an apt description, or that it's more shrilly liberal now than it was in the past, but obviously it's a liberal paper.

5) I do believe epistemic closure exists and afflicts some more than others. Perhaps it afflicts Scalia greatly. But if a liberal Justice said he or she read only the New York Times, the Washington Post, and the New Yorker, I doubt half as many people would be calling them epistemically shuttered for failing to pick up the Daily Caller (also lousy, incidentally) or the National Review. (Here, in fairness, is a note of difference between the standard-issue criticisms and Lapidos's piece in the Times: at least she calls out the President for purportedly only reading the New York Times.)

6) This all seems very American and parochial. Maybe the more important question is why all the Justices aren't reading Le Monde, Bild, El Pais, the Guardian, and the Times of London.

* I note that I don't especially think that he ought to have given the interview, or that Justice Ginsburg ought to have given the interview that occasioned headlines of its own this weekend.

Sunday, October 06, 2013

What the Difference Between Clothes and a Fig Leaf?

The question occurs to me after reading this snippet from Richard Posner's new book, Reflections on Judging, which strikes me as pretty minor Posner but still has its moments. The snippet takes place in the context of a discussion of what he believes is judges' "refusal . . . to confront, even to recognize, the challenge of complexity" posed by technology and other challenges:

Many lawyers are technologically challenged, just as the judges are, and so are drawn to the same avoidance techniques that judges retreat behind, while those who know better are anxious about deviating from the orthodox methods of legal argument, or fearful that judges will feel insulted to be spoon-fed appropriately simplified descriptions of the technological background to a case. I can assure the reader that we will not be. What would anger most judges would be a lawyer's telling them that it's time they dropped the pretense that judicial decisions are based on faithful adherence to statutory and constitutional language and to precedent. That's a fig leaf that almost all judges want to continue wearing.

I'm generally sympathetic to Posner's views on such matters and that's the case here, although I wonder whether it doesn't apply more to litigators, especially appellate litigators, than to lawyers in other areas.What I wonder is: If the kind of legalism he's referring to is a fig leaf that everyone insists on wearing, is there a point at which it becomes something other than a fig leaf? It's a truism that constitutional law, and perhaps other forms of law as well, is "just" a constrained or conventionalized form of politics. Is there a point at which the constraints are meaningful and accepted enough that they become more than "just" a concealed or constrained method of doing something else, and deserve to be taken seriously in their own right?

A fig leaf is a form of clothing that, at least in the biblical story, does nothing but conceal--and doesn't even do a good job of that, in God's eyes. Its only real function, in the end, is to reveal its own shameful and ridiculous nature. And yet there are vast industries devoted to taking clothes perfectly seriously, and occasions on which clothes serve a useful purpose. Is law, or the kind of legalism Posner is talking about, especially in constitutional interpretation, closer to the fig leaf or to what we generally think of as perfectly meaningful and heavily rule- and convention-bound clothing?

A couple of ways to think about this come from taking the metaphor seriously and thinking about (or, really, riffing on) the evolution of clothing. First, there is this possibility, which I think is an implicit theme of the chapter from which this quote is taken. Some clothing actually serves a useful function, particularly guarding us from injury--from scratches, freezing, and so forth. Clothing designed to serve that function might look quite different and work much better than clothing that purports to serve that function but really serves no functional purpose, either because it's not functional at all or because it has been designed for some other function. (I have bought some beautiful leather gloves for winter wear, in shops selling them as winter wear, that were largely useless for that purpose.) Perhaps legalism, in Posner's view, is similar. Obviously some very smart people have spent years working on better and better versions of textualism, originalism, and so on. These days some very smart liberals are working on very elaborate versions of the same thing. Some of this work seems pretty attractive. But, like working on a better pair of thin leather gloves, it might still be a massive waste of resources--wasted because it wasn't really undertaken with the underlying function in mind, overinvests in roundabout ways of achieving the actual function, and still doesn't do that great a job. It's like spending millions of hours and dollars working on a really scratch-resistant, durable, temperature-sensitive fig leaf, when what you really need is a decent piece of cloth and a string--or just plain nudity.

Another way to justify all this investment in legalism is more or less the way we justify most of what goes on with clothing. It serves little functional purpose physically speaking, but it does a variety of other things we care about: helping to signify social rank, or to preserve and extend moral norms, or to discriminate between or against different people, or to provide us with pleasure. It helps us to coordinate our actions, too, although it may do so inefficiently or improperly. Serving these kinds of convention can be a function, too, and one that matters a great deal to us, whether it should or not. Even if it should, of course, it can still do so badly, especially when we end up forgetting that we're really serving convention and pretending that we're doing something that's practically functional, or ask too much of those conventions, or hold on to them after they've served their purpose and another end is needed. This, too, seems like a pretty good description of legalism. I suspect Posner has little patience for this kind of justification. I have more patience for it than Posner does, although not all that much more. Certainly, in the final analysis, I am not inclined to be any more romantic about it than I am about the necktie or the codpiece, and I doubt that a good deal of legalism is any less wasteful than your average bowtie or periwig.

Thursday, October 03, 2013

Casey on Law School

Via Brian Leiter, here is a speech by Chicago Law's Anthony Casey addressing incoming law students. I agree with Brian that it's an excellent and thought-provoking speech, and rather than excerpt it I will simply encourage you to read the whole thing. It did leave me with a few questions and observations:

1) Casey writes: "People quite ignorant of what a good lawyer does will tell you that law school should be shorter, that law school should teach students how to pass the bar, that law students learn too much theory." Although I agree with his disagreement, I don't think his talk tells us how long law school should be, whether the combination of undergraduate education and law school could or should be restructured, and other details.

2) Law professors reading this as a general defense of the status quo would be mistaken. Even if Casey is right about the intellectual features that he thinks should be a part of legal education, that doesn't mean we always (or generally) succeed in providing them, or doing them well. If you agree with Casey's general vision of legal education, you ought to view it as a demanding standard and ask how well you are (I am) meeting it, rather than just standing pat on it.

3) I wonder how and whether Casey's vision comports with something Mark Tushnet writes in his (most) recent book, In the Balance: Law and Politics on the Roberts Court. I don't have the full quote here (it's on page 98), but Tushnet writes from experience, and not in a critical way, that "lawyers learn different--other--things in less elite schools." That is consistent with my experience at a variety of law schools as well. It often makes sense, although there is emphatically room to think that lawyers at elite law schools ought to learn more immediately practical things, and that lawyers at "less elite schools" sometimes ought to get more of the kind of instruction Casey is talking about. (I'm sure both happen sometimes.) I don't have a straight answer here, and I think the kinds of things Casey is talking about are a valuable component of a professional (or maybe a liberal) education, but one must note that his experience is more narrow than the experience of some teachers, and think about how to adapt the kinds of things he is talking about to different contexts.

One doesn't have to accept every line of Casey's talk to find it interesting and thought-provoking, however, and it is beautifully written to boot.

"Enduring Hierarchies in American Legal Education"

My colleague Andrew Morriss, along with Olufunmilayo Arewa and William Henderson, has posted on SSRN an article titled Enduring Hierarchies in American Legal Education, forthcoming in the Indiana Law Journal. It sounds interesting! Here's the abstract:

Although much attention has been paid to U.S. News & World Report’s rankings of U.S. law schools, the hierarchy it describes is a long-standing one rather than a recent innovation. In this Article, we show the presence of a consistent hierarchy of U.S. law schools from the 1930s to the present, provide a categorization of law schools for use in research on trends in legal education, and examine the impact of U.S. News’s introduction of a national, ordinal ranking on this established hierarchy. The Article examines the impact of such hierarchies for a range of decision-making in law school contexts, including the role of hierarchies in promotion, tenure, publication, and admissions, for employers in hiring, and for prospective law students in choosing a law school. This Article concludes with suggestions for ways the legal academy can move beyond existing hierarchies and at the same time address issues of pressing concern in the legal education sector. Finally, the Article provides a categorization of law schools across time that can serve as a basis for future empirical work on trends in legal education and scholarship.

Why We Can't Have Nice Things, Part 743

For those who are interested in law and religion issues, or national security, or education, or languages, or insanity, here is a story about Alabama parents objecting to an Arabic language class being taught in their local high school.

Why are they objecting? Because, as one parent said, “This is America, and English is our language, and while I understand the alleged premise of offering Arabic at our high school, I don’t agree with it. . . . “It is not just another language; it is a language of a religion of hate. I’m concerned about our taxpayer dollars going to fund such a program, because I don’t believe it has a lot of foundational value. . . . It just concerns me that we’re headed down a path of further eroding our society to a Muslim-based society, or Sharia law (the moral code of Islam), and I’m not willing to let that happen without … something to say about it.”

As another parent helpfully added, "They’re trying to indoctrinate our children with this culture that has failed. . . . .Why should we want to teach our kids a failed culture when we have a culture that has been successful? All we have to do is follow our Christian culture, which has brought this nation to the pinnacle of success. … I don’t see why they would want to teach this.”

Thursday, August 29, 2013

"Theory and Praxis," God Help Me

I have been a little busy with local politics and university activities lately, for my sins. I won't give a rundown on events, but a quick Googling of "Tuscaloosa," "election," and such quaint terms as "wristbands," "beer," "limos," and "Machine" will give you an idea. I've offered my direct thoughts on these matters elsewhere, but, hell, I am an academic, and I wanted to take a moment out for an academic reflection.

I remain pretty attached to the classic view of academics as people who do academic things in academic ways for academic reasons. Although I think there is more room for different approaches within the broader universe of higher educational institutions than he does, I generally sympathize with Stanley Fish's injunction to save the world on your own time. In both good and bad ways, I'm more a "theory" guy than a "praxis" guy.

But in the past day or so, I've been moved to reflect that there is actually a through-line between what I write about as an academic and what I've been involved with lately on a local level. It's not one I thought about as I acted, but it's there. I write a lot about institutions and institutionalism and their relationship to the First Amendment. I argue that a number of institutions, including universities, play a vital infrastructural role in our social structure and in public discourse. I believe their autonomy is important and that, in a sense, they should be viewed as partners in the First Amendment and not just subjects, and given substantial deference by courts. But I have always argued that there is a tradeoff or obligation here. Those who champion institutional autonomy must also take personal responsibility for the proper stewardship of those institutions: participating in governance if they are inside them and monitoring these institutions if they are not, encouraging those institutions to do the right thing as institutions, and criticizing them when they do not. "Faculty governance," "academic freedom," "church autonomy," and other such phrases are not just slogans to wave against outside interference; they are first and foremost burdens and responsibilities for the members of those institutions, and for the public at large. My piece "Act III of the Ministerial Exception" talks a great deal about this; so does a forthcoming piece I've written on the Fisher affirmative action case. And so, especially, does my book "First Amendment Institutions."

Again, I didn't really think about this as a precursor to my public involvement in the past couple of days; I just got involved because I felt I had to. But I *am* an academic, and so it was interesting to me (if no one else) to reflect on the relationship between what I write as an academic and what I have been doing "on my own time" in recent days, and to share those reflections. If a couple of books get sold too, I'm okay with that. Best wishes to all.

Monday, August 26, 2013

One More Thing on Ginsburg and Retirement

I'm grateful for the discussion on my post about Justice Ginsburg's interview with the Times--especially the criticisms. I had one more, related observation I wanted to make, which is less about the interview and more about the "retirement" issue. I should acknowledge up front that it involves some generalizations and premises with which people might disagree. Obviously I think I have a valid point to make, but it is at least a little speculative and not perfectly worked out. If I'm out on a limb here, I don't think I'm alone on that limb: Sandy Levinson has made some similar observations. But that doesn't mean either of us are right, of course.

As I have read the discussions about Ginsburg and retirement, I have seen two conflicting themes. 1) Ginsburg's retirement--or anyone's retirement, including Justice Breyer, although she is older and has been through various health scares, and it seems unlikely that such an invitation would be productive if addressed to the Court's conservatives--ought to retire now, while the Democrats might successfully secure her replacement, because if she retires later her place might be filled by a conservative, risking further damage to what liberals view as the proper direction for the Court. 2) This suggestion is impertinent at best, sexist or outrageous or both at best. Of course Justice Ginsburg shoudl retire when she thinks she should retire and not be pressured to step down early. This view is usually accompanied by various encomia to Justice Ginsburg, her role on the Court, her important work on behalf of equality rights for women, etc.

There are also, in my view, two sub-themes running through this discussion. The first is a liberal concern with (liberal conceptions of) justice, rights, the importance of the Supreme Court to these and other fundamental issues, the direction of the Court and the country, and so on. Of course this is the motivation for theme 1) above, but certainly these values are shared by most of the people voicing theme 2), and are often voiced in passionate terms.

The second is the tendency toward hero worship in prominent sectors of the American legal world, most definitely including both the "political"--here in the sense of legal liberals vs. legal conservatives--and the legal academic worlds. (Of course there's a lot of overlap here, but there are plenty of non-academic legal partisans.) This isn't surprising in an environment that is both sentimentally attached to history and largely run on connections, credentialism, and a love of prestige. But it's still striking in a profession that also makes noises about the importance of critical, dispassionate analysis. I don't know whether it's more true here than elsewhere, but elite (or at least well-credentialed) American lawyers are a hero-worshipping bunch if I've ever seen one. Perhaps it starts before law school, but it is certainly encouraged by the arrested adolescence that characterizes the law school experience. It is further maintained and encouraged by the arrested adolescence that similarly characterizes the clerkship experience. It extends to Janet Reno dance parties, black-tie FedSoc dinners with Justice Scalia, and so on. It never seems to die.

Whether on the surface or just beneath it, a lot of the angry defenses of Justice Ginsburg's entitlement to sit as long as she chooses seem to involve a heavy dose of hero worship. I'm sure she's earned it! (More because of what she did as a practicing lawyer than what she has done on the Court, in my view, but opinions may differ.) But it should be recognized for what it is.

I just don't think that motivation sits well with the other sub-theme, the theme that emphasizes the crucial importance of liberal legal views and their protection or advancement by the Court. If you don't think that the Court is that important, or don't care that much about rights or legal liberalism, or just think of the Court and its work as an "intellectual feast," or just really value hero worship, then the view that Ginsburg should feel free to retire when she feels like it makes sense. On the other hand, if you're really serious in thinking that the cause of legal liberalism matters a lot, and that the fate of the Court matters a lot, then you should care a lot more about that than you care about the entitlements of your heroes. You should care about the cause, not the privileges of its leaders. And if justice, rights, and that kind of stuff is your motivation, then it seems to me that you should be on board with the view that these things would be advanced by the immediate retirement of Justice Ginsburg (and/or Breyer).

Of course people may have multiple interests and motivations, although that doesn't seem like a full response, since you're still going to have to balance them at some point or conclude that one concern is more important than the other. For myself, absent a change in the nature of federal judicial tenure, I'm fine with Justice Ginsburg serving as long as she wants and is able, and thought the "pressure" for her to retire was a little silly as well as futile. But I am not as passionately motivated by legal liberalism and its causes, or as inclined to think of the Supreme Court as a palladium of liberty, as some of Justice Ginsburg's most vocal defenders are.

Perhaps it's worth their considering whether they are not, in fact, more motivated by hero worship, and a concern for the prerogatives of the hero, than by a strong concern for legal liberalism.

Sunday, August 25, 2013

Two Cheers for the President's "Two-Year" Proposal

I seem to be more favorably inclined toward President Obama's proposal to make law schools two years than Matt, who posts below. I think he raises some sensible concerns and that there is nothing wrong with doing so. I agree with his urging us to consider questions of pedagogy, although 1) law schools, which still insist in the main on hundred-percent end-of-semester finals, are a little spotty on serious consideration of pedagogy, and 2) when Matt writes that "choices about the required program of legal education should be based on pedagogy," I'm less certain that this should be the only consideration. I can appreciate the logic of his speculative statement that "with increasing legal complexity, most of us would likely need more education, rather than less, to be properly prepared," although 1) it's not self-evident to me that this education necessarily needs to take place within the law school, and 2) as Matt acknowledges, we must still ask whether the costs of this additional education outweigh its benefits. In short, I think he raises some valuable cautions, but they are just cautions; and I tend to have a more positive view toward two-year legal education than Matt appears to have.

Why only two cheers, then? I withhold one cheer because of the seemingly uniform nature of the President's proposal. ("Typical command-and-control Democrat!") I tend to think that there are a variety of different models that law schools could pursue if they went to a two-year program. And I tend to think that there is equal room for a variety of other approaches, including traditional or modified three-year programs, programs that perhaps involve very little classroom time at all, and even doctoral or doctoral-type programs that involve longer stays. Assuming that proper information is publicly provided about these programs, their price, their purposes, their employment outcomes, their different costs and benefits--and that is a huge and probably currently unwarranted assumption--then I think there is room for diversity, differentiation, specialization, and competition here. (I agree, of course, that questions of cost and the sources of financing are also highly relevant.) I think the arguments for a uniform three-year program are weak and am more sympathetic to a two-year program than Matt currently seems to be. But I think the best answer to the problems the President raised is unlikely to be a single answer or another uniform proposal.

Unnecessary and Inappropriate

That, in brief, is my take on this interview Justice Ruth Bader Ginsburg gave to the New York Times for today's paper. In it, she made clear that she was unmoved by pressure from some liberals for her to step down while a Democratic president can appoint her successor; said, according to the Times's paraphrase, that "her retirement calculations would center on her health and not on who would appoint her successor, even if that new justice could tilt the balance of the court and overturn some of the landmark women’s rights decisions that are a large part of her legacy," although she suggested that she did not think this was likely to happen; and criticized the activism of the current majority and several specific decisions.

The interview was unnecessary. To whom was she speaking? Her colleagues on the Court already know what she thinks, and she has ample alternative means of sharing her views with them. I doubt that conservatives off the Court will be moved much by her interview one way or the other. That leaves two liberal constituencies aside from the general public: the administration, which already knows she won't shove off; and establishment legal liberals of the ACS type, whom she can easily address more directly in person. That leaves, in my view, little serious point to this interview. If she had had something novel to say, I would be more charitable about her doing the interview, but she doesn't. Given my view that the interview was unnecessary, given the obviously political overtones of her charges, and given my general view that judges should not absent extraordinary circumstances or special needs make public political statements, I conclude that the interview was inappropriate.

One friend whose views I respect praised the speech as an instance of "speaking truth to power." I confess I almost always resist the use of this phrase, which I think is mostly both overused and misused. Much of the time, what people hold out as examples of "speaking truth to power" involve people who are themselves powerful; don't involve instances of the speaker actually directly addressing a powerful person with whom they disagree, but rather involve addressing an audience (often a powerful one) that already agrees with them, and to whom they are careful to say nothing disagreeable; and in any event don't involve speaking novel and disturbing truths, but well-worn and banal statements. All those things are true here. Whatever else one could call the interview, I don't think "speaking truth to power," especially with its (unduly, mostly false) romantic overtones, captures it.

For the most part I leave aside the question whether she should retire, and why she rather than someone else should be the target of efforts to get her to retire. I tend to think justices shouldn't serve forever but are free as a matter of present fact to serve as long as they wish, regardless of what it does to the long-term health of their jurisprudence. At the same time, however, I don't think "I really admire X" or "X has done so much for us" is a sufficient basis for the conclusion that "as far as I'm concerned, X can serve as long as he or she wants." If you think law and the Supreme Court matter, and you share Ginsburg's political views concerning the Court, you should probably conclude that the cause of justice would be best served by her retiring soon. On this view, Ginsburg's adamance is more selfish than justice-seeking. And, indeed, there is no doubt that a certain (no doubt well-earned) sense of high self-regard infuses the interview. But one needn't take this view of the Court or its importance, or the importance of a liberal version of politics or justice.

The bottom line, for me, is that the interview was unnecessary, and when you combine the fact that it was unnecessary with the political nature of her advocacy in the interview, it was perforce inappropriate. I don't doubt that some will applaud the interview because they like her, or like what she said, or both. Neither those reasons, nor the general goal of pleasing or rallying the base, are sufficient reasons to justify it. Justice Ginsburg insists in the interview that she is still fully capable of making decisions. I have no reason to doubt it. But her decision to do this interview was itself unwise and more than a little self-indulgent.

Monday, August 19, 2013

Three More Takes on Novelty Claims in Legal Scholarship

I've written here before about the tendency of law review articles, and especially their abstracts, to make what I tend to think are highly exaggerated claims of novelty. Of course, novel issues or problems are bound to arise from time to time in the law in response to events, and they're worthy of attention. The first time someone is assassinated by drone, or the first time an important new piece of legislation comes along, it makes complete sense that it ought to be written about. That is one sort of novelty. It must be said that the first articles to take on these issues generally apply existing legal tools and modes of thought; the topic may be new, but the thinking isn't. (It also often turns out that even the new topic often turns out not to be as new as everyone thought, so that it's the job of a second generation of articles to come along and argue that the first generation of articles ignored earlier events. And so on.) Occasionally, to be sure, articles will come along that contain genuinely new ideas. These are very few and far between.

None of this seems to stop a wave of articles from coming out every year whose abstracts trumpet, almost always inaccurately, "This is the first article to...." As you can probably tell, it kind of irks me--mostly because any such exaggeration in scholarly work irks me, but also because some of these articles seem to trade on their alleged novelty for what counts in the business as high placement.

(Incidentally, I am unreliably informed that some authors, having achieved a decent placement through an overclaiming abstract, will then prune back the novelty claims before publication. Or I am told that this would be a sound strategy on the part of authors, whether the informant does it or not. For the most part, as far as I can tell, the overclaims of originality in SSRN abstracts seem to make it into the published articles, so it doesn't look like many people actually do this. If they do, I would consider it a violation of what I quaintly think of as scholarly integrity.)

In my ongoing effort to make sense of this in something other than a purely strategic and cynical sense, here are three quick observations about the phenomenon. (Assuming, of course, that you agree it exists.)

1) It struck me in thinking about it today that there is a kind of unspoken agreement at work in this little game concerning Critical Legal Theory. One theme of Critical Legal Theory is that legal argument commonly consists of a set of conventional polar positions or mutually opposed moves. Those moves are present, if sometimes submerged, in just about every set of arguments on just about every kind of issue. Some romantics may hold out hope that this process will result in genuine dialectical advances from time to time; others may think the response should be to reject the standard moves altogether. Many just think that these moves will continue recurring indefinitely. This is a for-blog-purposes-only caricature of this theme, of course. But that seems somewhat appropriate, because it's more or less at exactly this banal level that the theme is generally accepted, to the extent that some ideas in CLS have become normalized in the legal academy.

What struck me is that, while I think something like this idea of the existence of continually recurring standard legal moves is fairly widely accepted by self-aware legal academics, there seems to me to be a corollary rule: Though Shalt Ignore Critical Legal Theory For Purposes of Law Review Abstracts. In the abstract, it is never the done thing to say something like, "I will be making standard move X in this article," or "In an important recent article, so-and-so used theory to examine new issue Y. As expected, I will now use policy." To say something like that is self-destructive at worst and gauche at best. Instead, thou shalt pretend that no one else has ever done before whatever it is that you're doing--while quietly acknowledging your predecessors, and thus demonstrating your scholarly credentials while reassuring the reader that the idea is not so original that it lacks credibility and a pedigree, somewhere around footnote 10.

I find this striking for two reasons. First, as I wrote, I think the basic cycling-of-standard-legal-moves idea is pretty widely accepted--everywhere, that is, but in law review abstracts. Second, many of the articles that I see making extreme and erroneous claims of novelty, and sometimes placing very well as a result, are all too happy to make extensive use of CLS and other forms of critical theory in the body of their papers.

2) In doing a little reading around this, I again came across two articles that I think are required reading. I suspect the first has gotten too little attention, partly because its interesting conclusions are put quite gently, and partly because of the publishing cycle of the journal in which it appears. The first is Mark Tushnet's recent article in the fiftieth anniversary volume of the Supreme Court Review, in which he re-reads two articles from the first volume. He observes that "[t]he articles show that the questions that scholars today regard as deep were already reasonably well understood fifty years ago." The only thing that's missing from the same discussions of the same issues today, he laments, is a "scholarly temperament of engaged detachment."

The second is Richard Posner's recent reply piece in the Georgetown Law Journal on the state of legal scholarship today. (The discussion is around pages 848-50.) Posner is agreeing here with a point made by Pierre Schlag about this arguably being an age of "normal science" in legal scholarship, an age between revolutionary moments. He writes that in such an age, in which teachers are always needed but scholars perforce must also do scholarship in order to get ahead, the "academic enterprise" becomes "afflicted with perversities." There is "pressure on faculty to publish even when the scholarship that is published has no value; hence the straining after novelty, the drive for specialization, the quest for rigor, the adoption of a technical vocabulary—all methods of signaling quality that may, however, have no effect except to turn off students and other readers." That seems half-right to me. The other half, though, is that it's just these kinds of qualities in legal scholarship, including the "straining after novelty," which will attract some "students and other readers." Those readers include some articles editors at highly ranked law reviews, who understandably would like to think that they are important and live in interesting times.

I wonder if we couldn't just print out and distribute to all current law review editors a simple sign to be placed above the slush pile. It would read: "WARNING: We are currently in an age of normal science. Unless it is actually examining a new set of facts, the article you are about to read is almost certainly not novel. Note: The facts probably aren't all that new either."

3) Tushnet's article, in particular, makes me reflect once again on the fairly stunning lack of a sense of disciplinary institutional memory in the legal academy. In part, I blame Westlaw and Lexis, whose archives barely extend back to the Reagan presidency. In large measure, I think it has to do with the lack of a deep canon in legal scholarship, or of much of an education in that canon by most law professors. Whatever the reason, I wish more law professors--and articles editors--would spend less time polishing absracts and more time reading Ecclesiastes.

Friday, August 16, 2013

Chris Lund on Legislative Prayer

My friend Christopher Lund has a fine piece on Slate (how rare it is that I get to string those words together!) on legislative prayer, and specifically on the upcoming Supreme Court case of Town of Greece v. Galloway. I suppose it contributes to my enjoyment that I am in substantial agreement with Chris that Marsh v. Chambers was always a problematic case, that it is easy to do legislative prayer "wrong,"* and that the questions and difficulties involved in doing it "right" may themselves raise insuperable problems. As I write in The Agnostic Age, although I think Marsh is wrong as a matter of sound constitutional law, I would be willing to let sleeping dogs lie. My concern with Galloway--and the Second Circuit opinion in the case was not a perfect decision, to be sure--is that a poor vehicle has been chosen that will end up with a majority doing more mischief than Marsh alone accomplished. Views differ on this. Regardless, however, Chris has done more and better work on this subject than anyone I know, and the Slate piece is very good.

* For an example of its being done "wrong," see this story, which involves my own state of Alabama and Twinkle Cavanaugh, the head of the state's Public Service Commission and a living reminder that all that twinkles is not gold.

Fascinating Canadian Story on "Academic Freedom"

The Chronicle of Higher Education has a fascinating story (subscription required) on Dennis Rancourt, a quondam physics professor at the University of Ottawa who has, for some time, been disputing his dismissal from the university before an arbitrator. Rancourt argues that he was dismissed for his political views. The university suggests that he was dismissed for numerous departures from his proper academic duties--among them, hollowing out an offered course from the inside, transforming it from a course in physics to a course on how science relates to "power structures," a move he called "academic squatting"; inviting ten-year-old twins to sign up for a course, and then assisting them in grieving the university's refusal to register them before a human rights commission as age discrimination; promising all his students in one class an A before the class started, more or less as a protest against the usual pedagogical norms of grading; and so on. While he was at it, he called a black law professor who wrote a report for the university its "House Negro." As it often does around Rancourt, protracted litigation ensued. His Wikipedia page is here; although it is one of the more self-serving entries I have seen there, it does contain useful links. Stanley Fish wrote about Rancourt here, and has an amusing discussion of him in a forthcoming book on academic freedom.

I was inclined to think Fish made too much of the Rancourt case, since Rancourt is so clearly an extreme case. On the other hand, I never would have dreamed that it would take as long as it has to resolve his dispute with the university, or that as many silly rulings would result along the way. Rancourt's case seems to me to do two things. It shows just how badly academic freedom can be distorted and misdefined, especially when its meaning is extended and politicized beyond all recognition. And it shows how damaging the involvement of both labor law and human rights commissions has been in Canada for a proper understanding and treatment of academic freedom. A couple of the figures quoted in the Chronicle story suggest that labor and human rights law have strengthened "academic freedom" in Canada. They have done nothing of the kind, unless you have an absurd definition of the term.